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[ "FIRST SECTION CASE OF DZHURAYEV v. RUSSIA (Application no. 38124/07) JUDGMENT STRASBOURG 17 December 2009 FINAL 28/06/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dzhurayev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 26 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "38124/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of Uzbekistan, Mr Yashin Yakubovich Dzhurayev (“the applicant”), on 3 September 2007. 2. The applicant was represented by Ms M. Morozova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 4 September 2007 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Uzbekistan until further notice. 4. On 24 April 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application, as well as to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5.", "The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1966 and lives in Tashkent, Uzbekistan.", "He is currently residing in Moscow. A. Proceedings in Uzbekistan 7. In January 2005, when the applicant was living in Uzbekistan, a district court in Tashkent convicted him of being a member of the Islamic religious organisation Tablighi Dzhamaat, prohibited in Uzbekistan. The court ordered him to pay a fine in an amount equal to sixty times the minimum monthly wage.", "8. The applicant paid the fine and continued to reside in Uzbekistan. However, according to him, he felt constant pressure from the law‑enforcement agencies, which required him to report on all his actions and movements and, in case of delay or failure on his part, threatened to arrest his elder son. So as not to put his family in danger, on 6 December 2005 the applicant left Uzbekistan for Moscow. 9.", "In the meantime the Supreme Court of Uzbekistan quashed the decision of January 2005 on the ground that the sentence was too mild and remitted the case for fresh examination. 10. On 9 January 2006 the Sobir Rakhimovskiy District Court of Tashkent ordered the applicant to be remanded in custody. On that basis a cross-border search warrant for the applicant was issued. B.", "Proceedings in Russia 1. Extradition proceedings 11. On 26 January 2007 the applicant was arrested in Moscow on the basis of the cross-border search warrant. 12. On an unspecified date the Tashkent Department of the Interior sent the Meshchanskiy District Department of the Interior of Moscow a request to keep the applicant in custody and enclosed a copy of the Sobir Rakhimovskiy District Court's decision of 9 January 2006.", "13. On 29 January 2007 the Meshchanskiy Inter-District Prosecutor's Office in Moscow issued a decision on application of a preventive measure and ordered that the applicant be placed in custody on the basis of the Uzbek court's decision of 9 January 2006. Article 61 of the Minsk Convention was cited as a legal source for application of the preventive measure. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against.", "On the same day the applicant was placed in remand prison SIZO-77/4, Moscow. 14. On 12 February 2007 the applicant applied to the Russian Prosecutor General's Office. He asked it to refuse the request of the Uzbek Prosecutor General's Office for his extradition and to release him from custody since he was charged with a crime that did not constitute a criminal offence under Russian law. 15.", "On 28 February 2007 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant. 16. On 23 March 2007 the Russian Prosecutor General's Office informed the applicant that no final decision had been taken in respect of the extradition and there were therefore no grounds to change the preventive measure applied in his case. 17. On 29 June 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a new decision to remand the applicant in custody pursuant to Article 466 § 2 of the CCP and Article 60 of the Minsk Convention.", "The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against. Neither the applicant nor his counsel was provided with a copy of the decision. The applicant was not notified of it until 27 July 2007, in the remand prison, as confirmed by his signature on a copy of the decision. 18.", "On 23 August 2007 the Russian Prosecutor General's Office dismissed the request of the Uzbek Prosecutor General's Office for the applicant's extradition because the acts with which the applicant had been charged did not constitute a crime under Russian law. 19. On 28 August 2007 the Meshchanskiy Inter-District Prosecutor's Office received notification from the Russian Prosecutor General's Office that the Uzbek authorities' request for the applicant's extradition had been dismissed. 20. On 30 August 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a decision authorising the applicant's release.", "The applicant was released from the remand prison. 2. Expulsion proceedings 21. On 30 August 2007, immediately after his release, the applicant was conveyed by policemen to the Meshchanskiy District Court of Moscow. At the hearing held on the same date, the court found the applicant guilty of an administrative offence: breach by a foreigner of the rules on entry and stay in the territory of the Russian Federation.", "The court imposed a fine of 5,000 Russian roubles on the applicant and ordered his expulsion. The court also ordered that pending his expulsion the applicant should be held in the centre for detention of foreign nationals of the Moscow Main Directorate of Internal Affairs. The applicant appealed. 22. On 4 September 2007 the Court indicated to the respondent Government that the applicant should not be expelled to Uzbekistan until further notice.", "23. On 11 September 2007 the Moscow City Court quashed the decision of the Meshchanskiy District Court and the applicant was released. 3. Further developments 24. On 28 September 2007 policemen stopped the applicant in the Moscow underground in order to check his papers.", "It appeared that the applicant was still on the cross-border wanted list, and he was taken to a police station for a decision concerning his arrest. After his counsel arrived and clarified the applicant's situation, he was released. The applicant then applied to the Office of the Prosecutor General to be removed from the list. 25. On 1 October 2007 the Russian Prosecutor General's Office ordered the Ministry of the Interior to remove the applicant's name from the cross‑border wanted list owing to the refusal to extradite him.", "4. Asylum proceedings 26. On 2 February 2007 the applicant applied to the Moscow Department of the Federal Migration Service for asylum. 27. On 16 March 2007 officials of the Moscow Department of the Federal Migration Service questioned the applicant in the presence of his counsel.", "28. On 26 March 2007 the Moscow Department of the Federal Migration Service dismissed the applicant's application on the ground that he did not meet the requirements provided for in domestic law for granting asylum. The applicant lodged a complaint with a court. 29. On 23 August 2007 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's complaint.", "The applicant appealed. 30. On 18 October 2007 the Moscow City Court dismissed the appeal in the final instance. 31. On 13 November 2007 the applicant was recognised as a mandate refugee by the United Nations High Commissioner for Refugees.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 1. Constitution of the Russian Federation of 1993 32. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order.", "The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2). 2. Code of Criminal Procedure 33. The term “court” is defined by the Code of Criminal Procedure (CCP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54).", "34. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2). 35. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1).", "A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). 36.", "Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125). 37.", "Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)). 38. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2). 3. The CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the 1993 Minsk Convention) 39.", "When performing actions requested under the Minsk Convention, a requested official body applies its country's domestic laws (Article 8 § 1). 40. Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60). 41. The person whose extradition is sought may be arrested before receipt of a request for extradition, if there is a related petition.", "The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3). 4. Decisions of the Constitutional Court (a) Decision of the Constitutional Court no. 101-O of 4 April 2006 42.", "Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its constant case‑law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 43. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without respecting the procedure established in the CCP, or in excess of the time-limits fixed therein. (b) Decision of the Constitutional Court no.", "158-O of 11 July 2006 on the Prosecutor General's request for clarification 44. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 45. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition.", "That was a matter for the courts of general jurisdiction. (c) Decision of the Constitutional Court no. 333-O-P of 1 March 2007 46. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 §§ 1 (f) AND 4 OF THE CONVENTION 47. The applicant complained under Article 5 § 1 (f) of the Convention that his detention pending extradition had been unlawful. The relevant parts of Article 5 § 1 read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” 48.", "He also complained under Article 5 § 4 and Article 13 of the Convention that he had been unable to challenge the lawfulness of his detention in Russia before a court. Considering that Article 5 § 4 is lex specialis to Article 13, the Court will examine this complaint under Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. The parties' arguments 1. The Government 49. The Government contested the applicant's arguments.", "They insisted that he had not exhausted the domestic remedies available to him because he had not lodged complaints about unlawful actions of a prosecutor to either a higher prosecutor or a court as he was entitled to do under Articles 124 and 125 of the CCP. In particular, he had not appealed against the decisions of the Meshchanskiy Inter-District Prosecutor's Office of 29 January and 29 June 2007. The Government disagreed with the applicant's assertion that Article 125 of the CCP had been inapplicable in his situation as it concerned only “parties to criminal proceedings”. They referred in this respect to Article 123 of the CCP, under which not only “parties to criminal proceedings” but also “other persons” were entitled to complain about a prosecutor's actions. 50.", "The Government further submitted that the applicant's detention awaiting a decision on the extradition request was lawful under both Russian law and the Minsk Convention. The terms of detention pending extradition were regulated in part by the Minsk Convention and by Chapter 13 of the CCP, as had been clarified by the Ruling of the Russian Constitutional Court of 4 April 2006. The maximum term of detention could not exceed eighteen months. The applicant had spent about seven months in custody, which appeared to be a reasonable time. 2.", "The applicant 51. The applicant disagreed with the Government and emphasised that he had had no effective domestic remedies to exhaust in relation to his complaints. In fact on 12 February 2007 he had applied to the Prosecutor General's Office under Article 124 of the CCP, asking to be released from custody; on 26 March 2007 the Prosecutor General's Office had informed him that there were no grounds to change the preventive measure because the extradition request was still being examined. The applicant had not been notified of the ruling of 29 June 2007 until 27 July 2007 and had thus been deprived of an opportunity to challenge it before a higher prosecutor. The applicant further argued that he had been unable to complain to a court under Article 125 of the CCP because he had not been charged with any criminal offence in Russia.", "52. The applicant asserted that Russian laws concerning detention pending extradition did not comply with the Convention criteria of quality of law. He also claimed that the length of his detention pending extradition had been excessive. 53. Lastly, the applicant asserted that his detention between 23 and 30 August 2007 had had no legal basis and had thus been arbitrary.", "B. The Court's assessment 1. Admissibility 54. Turning to the Government's plea of non-exhaustion, the Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint under Article 5 § 4 of the Convention. Thus, the Court finds it necessary to join the Government's objection to the merits of this complaint.", "The Court further notes that the applicant's complaints under Article 5 §§ 1 and 4 are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Article 5 § 4 of the Convention 55. The Court will first examine the applicant's complaint under Article 5 § 4 of the Convention.", "56. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person's detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release.", "The existence of the remedy required by Article 5 § 4 must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Talat Tepe v. Turkey, no. 31247/96, § 72, 21 December 2004). 57. The Court first notes that the applicant was detained pending extradition on the basis of two decisions of the inter-district prosecutor's office. Neither decision indicated that it was open to appeal (see paragraphs 13 and 17 above).", "The first decision, of 29 January 2007, stated that the applicant was being detained under Article 61 of the Minsk Convention, while the second one, of 29 June 2007, cited Article 466 § 2 of the CCP and Article 60 of the Minsk Convention as legal grounds for the detention. 58. The Court points out in this respect that domestic legal provisions should be applicable where actions are performed under the Minsk Convention (see paragraph 39 above). The Minsk Convention does not contain any rules on procedure for challenging a decision on placement in custody pending extradition under its Articles 60 and 61. Accordingly, the applicant had no remedies deriving from that Convention to challenge the lawfulness of his detention pending extradition.", "59. The Government emphasised that the inter-district prosecutor's office had based its decisions concerning the applicant's detention on the decision of the Sobir Rakhimovskiy District Court of Tashkent of 9 January 2006, pursuant to Article 466 § 2 of the CCP. The Court observes that it is clear that the applicant had no avenue to challenge the lawfulness of an arrest warrant issued by an Uzbek court before a Russian court and was thus unable to obtain a judicial review of the lawfulness of his detention on the basis of that warrant. 60. As to the Government's reference to Chapter 13 of the CCP, the Court points out that the only provision of this Chapter governing complaints about the lawfulness of custodial detention provides that a court's decision on placement in custody is appealable to a higher court (see paragraph 35 above).", "Chapter 13 remains silent when it comes to detention authorised by a prosecutor, not a court. Therefore, the applicant had no possibility to complain to a court about the inter-district prosecutor's office's decisions of 29 January and 29 June 2007 under the provisions of Chapter 13 of the CCP, as suggested by the Government. 61. As to the Government's assertion that the applicant could have complained about the unlawfulness of his detention to a prosecutor or a court under Articles 124 and 125 of the CCP, the Court observes that Chapter 16 of the CCP concerns the possibility for “parties to criminal proceedings” to challenge decisions taken in the course of a preliminary investigation, such as a decision not to initiate criminal proceedings or a decision to discontinue them. There is no indication that the applicant was a party to criminal proceedings within the meaning given to that phrase by the Russian courts (see Muminov v. Russia, no.", "42502/06, § 115, 11 December 2008, and Nasrulloyev v. Russia, no. 656/06, § 89, 11 October 2007). Furthermore, the Government have provided no explanation as to how the applicant could have claimed to qualify as “other persons” within the meaning of Article 123 of the CCP to be able to challenge officials' acts and decisions “touching upon” his interests. Moreover, it is clear from the wording of Article 125 of the CCP that “other persons” within the meaning of Article 123 of the CCP do not have a right to complain before a court about officials' acts and decisions. Thus, the Court is not persuaded that the provisions of Chapter 16 of the CCP could have been applied in the applicant's case as suggested by the Government.", "62. In such circumstances the Court concludes that the Government failed to show that the existence of the remedies invoked was sufficiently certain both in theory and in practice and, accordingly, that these remedies lack the requisite accessibility and effectiveness (see A. and E. Riis v. Norway, no. 9042/04, § 41, 31 May 2007, and Vernillo v. France, 20 February 1991, § 27, Series A no. 198). The Government's objection concerning non-exhaustion of domestic remedies must therefore be dismissed.", "63. It follows that throughout the term of the applicant's detention pending a decision on his extradition he did not have at his disposal any procedure for a judicial review of its lawfulness. There has therefore been a violation of Article 5 § 4 of the Convention. (b) Article 5 § 1 of the Convention 64. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports of Judgments and Decisions 1996-VI).", "The text of Article 5 makes it clear that the guarantees it contains apply to “everyone” (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 162, ECHR 2009‑...). Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). 65.", "It is common ground between the parties that the applicant was detained as a person “against whom action is being taken with a view to deportation or extradition” and that his detention fell under Article 5 § 1 (f). The parties dispute, however, whether this detention was “lawful” within the meaning of Article 5 § 1 of the Convention, 66. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see Erkalo v. the Netherlands, 2 September 1998, § 52, Reports 1998-VI; Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII; and Saadi, cited above, § 67). 67.", "Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with (see Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III; Ječius v. Lithuania, no. 34578/97, § 68, ECHR 2000‑IX; and Ladent v. Poland, no. 11036/03, § 47, ECHR 2008-... (extracts)). 68. Turning to the circumstances of the present case, the Court observes that the applicant's initial placement in custody was ordered, on 29 January 2007, by the inter-district prosecutor's office on the basis of the provisions of the Minsk Convention.", "The Court also notes that, although the decision of 29 January 2007 contained no reference to Article 466 § 2 of the CCP, the prosecutor's authority under domestic law to decide on the applicant's placement in custody without a Russian court order must have derived from that provision (see paragraph 38 above). 69. The Court points out that neither Article 61 of the Minsk Convention nor Article 466 § 2 of the CCP stipulate any rules on procedure to be followed when choosing a preventive measure in respect of a person whose extradition is sought, or any time-limits for his or her detention pending extradition. 70. The Court observes in this respect that by the time of the applicant's placement in custody the Russian Constitutional Court had already proclaimed that in extradition proceedings the right to liberty should be attended by the same guarantees as in other types of criminal proceedings.", "It unambiguously indicated that the application of preventive measures with a view to extradition should be governed not only by Article 466 but also by the norms on preventive measures contained in Chapter 13 of the CCP (see paragraph 43 above). 71. Furthermore, the Government confirmed that the applicant's detention pending extradition had been governed by Chapter 13 of the CCP, among other provisions. 72. In such circumstances the Court considers that, in order to be “lawful” within the meaning of Article 5 § 1 (f) of the Convention, the applicant's detention should be compatible not only with the requirements of Article 466 § 2 but also with the provisions governing application of a preventive measure in the form of placement in custody, namely Articles 108 and 109, which are included in Chapter 13 of the CCP.", "73. Article 108 § 4 of the CCP expressly provides that an issue of placement in custody is to be decided upon by a judge of a district or military court in the presence of the person concerned. It follows from the wording of Article 5 § 48 and Article 31 § 2 of the CCP that a district court is a court authorised to act on the basis of the Russian Code of Criminal Procedure, which implies that the term “district court” refers to a court established and operating under Russian law. Accordingly, a judge of a district court is an official authorised to administer justice on the territory of the Russian Federation. Nothing in the wording of Article 108 § 4 of the CCP suggests that a foreign court may act as a substitute for a Russian district court when deciding on a person's placement in custody.", "74. Accordingly, the fact that the applicant's placement in custody was not authorised by a Russian court is clearly in breach of Article 108 § 4 of the CCP. 75. Furthermore, even assuming that the applicant's initial placement in custody was compatible with domestic legal provisions, it would have ceased to be “lawful” after the lapse of the two-month period provided for by Article 109 § 1 of the CCP. Article 109 § 2 of the CCP unequivocally stipulates that the two-month term of custodial detention can be prolonged up to six months only on the basis of a decision by a judge of a district court or a military court of corresponding level.", "In the absence of any Russian court decision to extend the applicant's custodial detention, the Court is bound to conclude that after 27 March 2007, that is, past two months from the date of his placement in custody, the applicant was detained in breach of domestic law. 76. The Court thus finds that the applicant's detention pending extradition cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. In these circumstances, the Court does not need to consider separately the applicant's additional arguments concerning the quality of domestic law, the length of his detention and his delayed release. 77.", "There has therefore been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 78. 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 79.", "The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage. 80. The Government considered the amount claimed to be excessive and observed that, should the Court find a violation of the Convention in respect of the applicant, the mere finding would suffice as just satisfaction. 81. The Court notes that it has found violations of two provisions of Article 5 in respect of the applicant.", "The Court thus accepts that he has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations and finds it appropriate to award the applicant EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 82. The applicant also claimed EUR 900 for the costs and expenses incurred before the domestic authorities and EUR 850 for those incurred before the Court. In support of his claims he submitted a copy of an agreement with his lawyer.", "83. The Government did not comment on the applicant's claims for costs and expenses. 84. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,750 covering costs under all heads.", "C. Default interest 85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government's objection as to non‑exhaustion of criminal domestic remedies and rejects it; 2. Declares the application admissible; 3.", "Holds that there has been a violation of Article 5 § 4 of the Convention; 4. Holds that there has been a violation of Article 5 § 1 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), in respect of non-pecuniary damage, and EUR 1,750 (one thousand seven hundred and fifty euros), in respect of costs and expenses, plus any tax that may be chargeable to the applicant on these amounts, to be converted into Russian roubles at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident" ]

[ "THIRD SECTION CASE OF TOPEKHIN v. RUSSIA (Application no. 78774/13) JUDGMENT STRASBOURG 10 May 2016 FINAL 17/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Topekhin v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Johannes Silvis,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova,Alena Poláčková, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 19 April 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "78774/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Aleksandrovich Topekhin (“the applicant”), on 14 December 2013. 2. The applicant was represented by Ms S. Sidorkina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged that he had not received adequate medical care in detention, that the conditions of his detention and transport to a correctional colony had been inhuman and unsuitable for a partly-paralysed detainee such as himself, that the length of his detention on remand had been excessive, and that his appeal against detention orders had not been examined speedily. 4. On 2 April 2014 the Court granted priority to the application under Rule 41 of the Rules of Court and dismissed the applicant’s request for interim measures under Rule 39 of the Rules of Court. 5. On 18 November 2014 the application was communicated to the Government and the priority treatment was lifted.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1982 and until his arrest lived in Moscow. A. Criminal proceedings against the applicant 7.", "On 27 February 2012 the police opened a criminal investigation into large-scale fraud. According to investigators, an unknown person had convinced a businessman to hand over 10,000,000 Russian roubles (approximately EUR 248,000) on the pretext of selling some equipment. However, the person had had no intention of selling the equipment or returning the money. 8. On 24 January 2013 the applicant was accused of aggravated fraud.", "The police ordered him not to leave his place of residence, but he fled and was put on a wanted list by the police. 9. On 16 July 2013 he was arrested and taken to a police custody facility. The next day the Tverskoy District Court of Moscow (“the District Court”) authorised his pre-trial detention until 16 September 2013, having regard to the seriousness of the charges against him and the risk of his absconding, reoffending and interfering with justice. 10.", "The applicant appealed. He referred to, among other things, his poor health. 11. On 19 August 2013 the Moscow City Court (“the City Court”) upheld the detention order on appeal after examining his recent medical documents, stating that his health did not preclude his detention on remand. 12.", "On 13 September 2013 the District Court extended the applicant’s detention until 16 November 2013, citing the risk of his absconding given his previous attempt to evade prosecution and the seriousness of the charges against him. The District Court also linked that risk to the applicant’s lack of stable income or work. In the court’s view, no alternative measure, such as house arrest or bail, could have ensured that the criminal proceedings ran smoothly. Lastly, the court noted the complexity of the case and several steps in the investigation which had yet to be performed, including some which required the applicant’s presence and participation. 13.", "The applicant appealed. He applied to the City Court to be released on bail because of his worsening health. He insisted that he could no longer move without assistance. In the meantime, in October 2013 he was served with the final version of the bill of indictment and was committed to stand trial before the District Court. 14.", "On 13 November 2013 the City Court upheld the detention order of 13 September 2013, endorsing the District Court’s reasoning. After examining medical evidence pertaining to the applicant’s health, it found that the illnesses he suffered from were not severe enough to warrant his release. 15. On an unspecified date the police searched the applicant’s flat and found a passport with his photograph but under another name. 16.", "On 14 November 2013 the District Court extended the applicant’s detention until 30 March 2014. It again cited his unemployment status and ability to abscond, in view of the seriousness of the charges and his having been on the run from January to July 2013. Noting that his state of health was compatible with the detention conditions, the court concluded that the extension of his detention was justified. 17. On 13 January 2014 the District Court dismissed the applicant’s request for release on bail or under a written undertaking not to leave Moscow.", "It reiterated the arguments contained in the preceding detention orders and noted the discovery of the forged passport in his flat during the police search, which for the court was a clear sign of his intention to flee. It also addressed his arguments that he had become paraplegic and thus no longer posed a flight risk. It noted that according to a recent conclusion of a medical panel (see paragraph 32 below), his health did not call for his release. 18. On the same day the District Court convicted the applicant of aggravated fraud and sentenced him to six years’ imprisonment in a correctional colony.", "19. On 20 February 2014 the City Court upheld the conviction, but reduced the sentence to four years. B. The applicant’s detention, transfer conditions and medical treatment in detention 1. Police ward 20.", "For about a week after his arrest on 16 July 2013 the applicant was kept in a Moscow police ward. 21. His cell measured 12 square metres, had three sleeping places and usually housed two or three inmates. He did not complain about his health and was not seen by a doctor, save for a general check-up on admission. 2.", "Remand prisons 22. On 24 July 2013 the applicant was taken to remand prison no. IZ‑77/2 in Moscow. He underwent the usual general medical check-up on arrival. Informing the resident doctor about serious back injuries he had sustained in 2008 and 2010, he did not make any specific complaints, except about his hypertension.", "He was considered to be in good health. 23. According to the Government, he was placed in a cell which measured 26.96 square metres and housed four other inmates. Subsequently he was transferred between less spacious cells, which he shared with two or three inmates. The living space afforded to him varied between 3.8 and 5.7 square metres.", "Throughout his detention he slept on an individual prison bunk. The applicant did not dispute the above information submitted by the Government. 24. According to the applicant, in August 2013 he fell and hurt his back. Severe back pain was accompanied by numbness in the legs and resulted in him being unable to walk unaided.", "He spent the major part of his day in bed being assisted by his cellmates. They took him for walks in the prison yard, carried him to the toilet and washed him with wet towels, which was their way of showing that they were annoyed with his helplessness. 25. The applicant’s medical records show that on 8 October 2013 he complained to the resident doctor that he was suffering from a headache and back and abdomen pain. The doctor prescribed him drugs and a consultation with a neurologist.", "26. On 19 October 2013 he was taken to a medical unit in the same remand prison for inpatient treatment. The attending doctor noted that, owing to a pain syndrome, he had been unable to move unaided. After blood tests and a CAT (computerized axial tomography) scan, he was injected with painkillers, muscle relaxants, nootropics and vitamins. 27.", "The applicant submitted that on 24 October 2013 during his transfer to a court hearing in a standard prison van, he had again severely hurt his back and head. 28. On 13 November 2013 the applicant was discharged from the medical ward to be transferred to the hospital in remand prison no. IZ-77/1 in Moscow for more comprehensive treatment. 29.", "The transfer occurred a week later. On admission to hospital the applicant complained of head and back pain and numbness in his legs. The hospital performed a number of medical tests, including blood and urine tests, a CAT scan and a cerebrospinal fluid analysis. As a result he was diagnosed with paraplegia of unknown origin, headaches and chronic inflammatory demyelinating polyneuropathy. He received antibiotics, muscle relaxants, vitamins and other medication.", "His health improved, but not significantly. The paraplegia remained unchanged. He was discharged from hospital on 9 December 2013 to undergo treatment in a civilian hospital and to check whether his state of health called for his early release. 30. From 9 to 13 December 2013 the applicant stayed in Moscow City Hospital no.", "20, where he underwent a medical expert examination and received treatment. He had an MRI (magnetic resonance imaging) scan of his spinal column and spinal cord, a scintigraphy and an X-ray of his pelvis. According to a medical report dated 13 December 2013, he suffered the consequences of a reduced blood supply to the Adamkiewicz artery, including lower limb spasticity, dysfunction of the pelvic organs and bedsores developed outside the hospital. In addition, he was diagnosed with hypertension, a small hydrothorax on the right side and some residual effects of pneumonia that did not call for any treatment. The conditions did not fall within the established list of illnesses warranting early release.", "31. The applicant was taken to the intensive care unit of remand prison no. IZ-77/1, where he continued his drug regimen in line with the hospital’s recommendations. The doctors were, however, unable to ensure any improvement in his conditions. A week later he was sent back to Moscow City Hospital no.", "20. 32. A report drawn up on 31 December 2013 by a medical panel from the hospital stated that, in addition to the previous diagnosis, the applicant suffered from neurogenic bladder and bowel dysfunction. However, his conditions still did not reach the level of severity to warrant his release. 33.", "The stay in hospital was followed by two weeks of detention in remand prison no. 77/1. There is nothing to suggest that his treatment was interrupted during that period. 34. On 15 January 2014 the applicant was again taken to Moscow City Hospital no.", "20 for a month of treatment. The hospital staff changed his drug regimen, completing it with antioxidant and neutrophil treatment, muscle relaxants, painkillers, and introducing physiotherapy, which resulted in “certain positive changes in [his] state of health”. 35. Meanwhile, the applicant’s lawyer asked an independent medical specialist to provide an opinion on the quality of medical care afforded to the applicant in the remand prison. In a report dated 11 February 2014 the specialist stated that the applicant’s conditions required enhanced medical attention and inpatient treatment that could only be performed in a neurological medical facility.", "Remand prison no. 77/1 was not licensed to provide neurological treatment or perform neurosurgery. His bedsores were a sign of insufficient medical attention. The report ended with a recommendation that he be classified as disabled. 36.", "On 14 February 2014 the applicant was taken to remand prison no. 77/1, where he was detained until 1 March 2014. According to the Government, he shared his cell measuring around 11.4 square metres with another inmate. As he was unable to care for himself, medical staff and inmates assisted him with his daily needs. It is apparent from the case file that he continued to receive treatment as prescribed.", "37. On 1 March 2014 he was sent to serve his sentence in a correctional colony in Kostroma, over 300 kilometres away. 3. Transfer to correctional colony 38. In the early hours of 1 March 2014 the applicant was taken in a Gazel minivan designed to transfer the seriously ill, to a Moscow train station.", "The trip took two hours. 39. At the train station he was placed on board a standard train carriage, where he had to stay for four hours awaiting departure. The journey to the destination, the town of Yaroslavl, took approximately five hours. The Government only stated that the applicant had shared his carriage with other detainees and had been accompanied by escort officers ready to assist him if necessary.", "40. In Yaroslavl the applicant was taken from the train to a prison van. According to the written statements by escort officers submitted by the Government, he was put on a thin blanket on the floor of the van. In the next half hour he was taken to a remand prison, so that new escort officers could join the transfer team. The applicant had to wait for another hour, lying on the floor of the van, while the official procedure involving the escort officers was under way.", "He was then taken back to the train station in Yaroslavl. 41. At the station the applicant was taken to a prison train carriage, which he shared with other inmates. After another two hours the train departed for Kostroma. The trip took three hours.", "At around midnight the train arrived at the Kostroma train station. The Government did not provide any description of the conditions in which the applicant travelled. 42. Within the next hour a prison van took the applicant to a nearby remand prison, where he was detained from 2 to 6 March 2014. 43.", "On the morning of 6 March 2014 the applicant was taken in the same prison van to correctional colony no. IK-15/1 (“the correctional colony”). The trip took around an hour. 44. The parties disagreed whether the vehicles used to transfer the applicant, with the exception of the Gazel minivan, were equipped to accommodate ill inmates.", "While the Government argued that all vehicles could transport bedridden patients, the applicant stated that they had had no special equipment on board. He had been forced to lie on the floor of the prison vans on a thin blanket used as a stretcher. During the entire journey he had been in severe pain, but had not received any painkillers. 4. Correctional colony 45.", "The applicant was placed in the medical unit of the colony. He continued receiving various drugs and injections, including nootropic drugs, muscle relaxants and antioxidants and vitamins, to improve the function of the central and peripheral nervous systems. He was regularly seen by doctors. His condition remained stable. 46.", "The applicant spent all his time in bed. Personal care workers provided him with bedside care, including basic nursing procedures. 47. The applicant was examined by a panel of doctors to check whether he should be released early on health grounds. In their report dated 15 April 2014 they concluded that his conditions, in particular his lower limb spasticity and bladder and bowel dysfunction called for his early release.", "48. On the panel’s recommendation, the colony administration asked the court to authorise the applicant’s early release on health grounds. 49. The Sverdlovskiy District Court of Kostroma granted the request and on 3 July 2014 ordered his release. On 26 August 2014 the Kostroma Regional Court upheld the order on appeal.", "Two days later the applicant was released. II. RELEVANT DOMESTIC LAW A. Extension of detention 50. The Russian legal regulations in respect of detention during judicial proceedings are explained in the judgments of Pyatkov v. Russia (no.", "61767/08, §§ 48-68, 13 November 2012) and Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009). B. Health care of detainees 51. The relevant provisions of domestic and international law on the general health care of detainees are set out in the judgments of Vasyukov v. Russia (no.", "2974/05, §§ 36-50, 5 April 2011) and Khudobin v. Russia (no. 59696/00, § 56, 26 October 2006, ECHR 2006‑XII (extracts)). C. Detention of disabled detainees 52. The Russian Code on the Execution of Sentences sets out certain requirements for the detention of disabled detainees. While Article 99 § 1 provides for a minimum standard of 2 sq.", "m of personal space for male convicts in correctional colonies and 3 sq. m of personal space in prison health care facilities, Article 99 § 6 indicates that inmates with a category 1 or 2 disability are entitled to “improved accommodation and living conditions”. Article 88 § 6 provides that disabled detainees have a right to buy food and articles of primary necessity without any limitations. Article 90 allows ill or disabled inmates to receive additional parcels or packages, including ones containing medication, the content and quantity of which must be determined by medical specialists. Under Article 99 §§ 6 and 7 disabled inmates must be provided with food, clothing and toiletries free of charge.", "They are also entitled to an enriched diet. 53. Russian law does not contain specific rules or requirements regulating the detention of wheelchair-bound detainees. III. RELEVANT INTERNATIONAL MATERIAL 54.", "The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Russia ratified the Convention on 25 September 2012. It did not ratify the Optional Protocol. Article 1of the Convention provides: “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” The relevant part of Article 14 provides: “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 this Convention, including by provision of reasonable accommodation.” The relevant part of Article 15 provides: “2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” The requirements regulating personal mobility are laid down in Article 20, which reads as follows: “States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost; Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities; Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.” 55. In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows: “50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ...", "In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ... 53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ... 54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’.", "This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.” IV. RELEVANT COUNCIL OF EUROPE MATERIAL 56. The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: e. Humanitarian assistance “64. Certain specific categories of particularly vulnerable prisoners can be identified.", "Prison health care services should pay especial attention to their needs.” ... iv) prisoners unsuited for continued detention “70. Typical examples of this kind of prisoner are those who are the subject of a short‑term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” ... g. Professional competence “76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers.", "At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated. Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines.", "77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.” 57. Recommendation no. R (98) 7 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: III. The organisation of health care in prison with specific reference to the management of certain common problems C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis “50.", "Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...” 58. Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular: IV. Guidelines for prison staff conduct D. Care and assistance “19.", "Prison staff shall be sensitive to the special needs of individuals, such ... disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs. 20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required. 21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody.", "They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules. 22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 59. The applicant complained that he had not been afforded adequate medical treatment in detention, excluding the periods when he had been treated in Moscow City Hospital no.", "20, and that the conditions of his detention and transfer to the correctional colony had been degrading. He relied on Article 3 of the Convention, which reads: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The Governments’ submissions 60. The Government argued that their obligations under Article 3 of the Convention had been fully discharged.", "As regards the applicant’s medical treatment, they submitted that shortly after his very first complaint to the resident doctor in October 2013, he had been subjected to an in-depth medical examination and had received comprehensive medical treatment comprising injections, a drug regimen and physiotherapy. The authorities had used their utmost efforts to restore his health. In support of their arguments the Government submitted the applicant’s complete medical file. 61. As regards the conditions of his detention, the Government considered that they had been in line with the requirements of the Convention.", "The applicant had thus had an individual sleeping place and had been afforded sufficient living space. The authorities had ensured that he had been assisted with his daily needs by personal care workers and inmates after his health had deteriorated. 62. Lastly, the Government stated that the escort authorities had taken cognisance of the applicant’s illness when arranging for him to be transferred. The vehicles used had been suitable for transporting bedridden detainees.", "The Government submitted the applicant’s itinerary, the train schedule and a written statement by officers who had escorted the applicant in Yaroslavl (see paragraph 40 above). 2. The applicant’s submissions 63. The applicant maintained his complaints, arguing that in August 2013 he had lost movement in his legs and since then had been confined to bed, being assisted only by inmates. The remand prisons had not been equipped to detain seriously ill inmates, had not employed trained “assistive personnel” and had been unable to provide him with the required neurological treatment.", "He provided the Court with a copy of a written transcript of an interview given by an inmate to his lawyer on 17 March 2014. The inmate stated that the applicant had complained of headaches and back and leg pain from the first few days of his detention, but had still retained his ability to walk and had not required any assistance at that time. However, a fall from the upper bunk in August 2013 had resulted in the applicant’s leg becoming completely paralysed. The inmate noted that the applicant had become confined to his bed and had only received assistance from inmates who had volunteered to help. 64.", "Lastly, the applicant disputed the Government’s description of the vehicles used to transfer him. He indicated that the Gazel minivan had only been equipped to transport bedridden patients. B. The Court’s assessment 1. Admissibility 65.", "The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) Medical treatment (i) General principles 66.", "The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill‑treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Verbinţ v. Romania, no.", "7842/04, § 63, 3 April 2012, with further references). 67. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).", "68. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000‑XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most of the cases concerning the detention of persons who were ill, the Court has examined whether or not the applicants received adequate medical assistance in prison.", "The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)). 69. The “adequacy” of medical assistance remains the most difficult element to determine.", "The Court insists, in particular, that authorities must ensure that diagnosis and care are prompt and accurate (see Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no. 3242/03, § 84, 21 December 2010; Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Melnik v. Ukraine, no.", "72286/01, §§ 104-106, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211). The Court further reiterates that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment the State authorities have committed themselves to providing to the entire population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of treatment as is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no.", "2447/05, § 66, 7 February 2012). 70. On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).", "(ii) Application of the above principles to the present case 71. Turning to the facts of the present case, the Court notes that the applicant, a seriously ill person suffering from paraplegia and a number of related conditions, including serious bowel and bladder dysfunctions, was detained from 16 July 2013 to 18 August 2014. He argued that his health had significantly deteriorated in detention, as a result of the authorities’ failure to comply with their obligations under Article 3 of the Convention and to provide him with the requisite medical care. 72. The Court has to undertake a first-hand evaluation of a significant quantity of medical evidence in order to determine whether the guarantees of Article 3 of the Convention have been respected in the present case.", "73. At the outset it observes that the Government submitted extensive medical documents, including the applicant’s medical file drawn up in detention, treatment summaries, test results and medical opinions. The documents cover the entire period of the detention. The applicant did not dispute the authenticity or quality of those documents. The Court therefore has no reason to doubt their accuracy and reliability.", "74. In the light of this, the Court is unable to accept the applicant’s allegations that although he had developed a pain syndrome and had lost the ability to move in August 2013, he had remained without any medical attention for two months, until October 2013. The medical record indicated that he had applied for medical assistance for the first time in October 2013, complaining of pain in his back, head and abdomen (see paragraph 25 above). That date will be accordingly taken by the Court as the date when the authorities became aware, for the first time, of the early signs of the applicant’s paraplegia. 75.", "The Court further observes that as soon as the authorities became aware of the applicant’s health problems they put him on a drug regimen, (see paragraph 25 above). Several days later he was admitted to the prison medical unit, where he underwent the necessary testing for the prompt and correct diagnoses. He was seen by various doctors, including a neurologist, and prescribed comprehensive treatment (see paragraph 26 above). Further complex examinations, such an analysis of the cerebrospinal fluid, followed. These were scheduled and performed in a timely and proper manner (see paragraph 29 above).", "The applicant’s drug regimen was amended when necessary and his treatment strategy went far beyond attempts aimed at mere pain relief. It was aimed at fully restoring the lost use of the applicant’s legs. There is nothing in the Court’s possession to show that the prescribed treatment was not administered properly or was interrupted. The detention authorities continued with the treatment, providing prescribed drugs and injections, irrespective of the place of the applicant’s detention, whether in hospital or a standard detention facility (see paragraphs 31, 33, 36 and 45 above). They also introduced physiotherapy for him, thus ensuring that the he had access to a key component of the rehabilitation process (see paragraph 34 above).", "76. In these circumstances the Court finds no evidence to support the applicant’s assertion that the deterioration of his health had been brought about by insufficient or poor treatment. The Court cannot disregard others factors, which he himself did not exclude, such as the steady development of his back disorders rooted in the injuries sustained in 2008 and 2010 (see paragraph 22 above) and aggravated by a new injury received in detention (see paragraph 24 above). The Court also attributes particular weight to the fact that the independent medical specialist, who had assessed the quality of the applicant’s treatment at his lawyer’s request, did not identify any serious defects in the treatment, merely accentuating the general need to treat him in a neurological hospital (see paragraph 35 above). The specialist noted the applicant’s bedsores.", "However, the Court considers that they are not so much a matter of the quality of medical treatment but rather of the general care and conditions of the applicant’s detention, which will be addressed by the Court under a separate heading. 77. To sum up, the Court considers that the authorities provided the applicant with the requisite medical assistance in detention. Accordingly, there has been no violation of Article 3 of the Convention on that account. (b) Conditions of detention (i) General principles 78.", "The Court further reiterates that Article 3 of the Convention requires the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method in which the measure is enforced do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, ECHR 2000‑XI, and Melnītis v. Latvia, no. 30779/05, § 69, 28 February 2012). 79. Moreover, the Court has considered that where the authorities decide to place and keep a disabled person in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his disability (see Z.H. v. Hungary, no.", "28937/11, § 29, 8 November 2012; Jasinskis v. Latvia, no. 45744/08, § 59, 21 December 2010; and Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004). 80. In the above-cited case of Farbtuhs, the Court noted that the prison authorities had permitted family members to stay with the applicant for twenty-four hours at a time and that this had taken place on a regular basis.", "In addition to being cared for by his family, the applicant, who had a physical disability, was assisted by the medical staff during working hours and was helped by other inmates outside working hours on a voluntary basis. The Court expressed its concerns in the following terms (§ 60): “ The Court doubts the appropriateness of such a solution, leaving as it did the bulk of responsibility for a man with such a severe disability in the hands of unqualified prisoners, even if only for a limited period. It is true that the applicant did not report having suffered any incident or particular difficulty as a result of the impugned situation; he merely stated that the prisoners in question sometimes ‘refused to cooperate’, without mentioning any specific case in which they had refused. However, the anxiety and unease which such a severely disabled person could be expected to feel, knowing that he would receive no professional assistance in the event of an emergency, in themselves raise a serious issue from the standpoint of Article 3 of the Convention.” 81. The Court has also held that detaining a disabled person in a prison where he cannot move around and, in particular, cannot leave his cell independently, amounts to degrading treatment (see Vincent v. France, no.", "6253/03, § 103, 24 October 2006). Similarly, the Court has found that leaving a person with a serious physical disability to rely on his cellmates for assistance with using the toilet, bathing and getting dressed or undressed contributes to its finding that the conditions of detention amount to degrading treatment (see Engel v. Hungary, no. 46857/06, §§ 27 and 30, 20 May 2010). (ii) Application of the above principles to the present case 82. Turning to the facts of the present case, the Court observes that the parties submitted conflicting descriptions of the conditions of the applicant’s detention in remand prisons nos.", "77/1 and 77/2 (see paragraphs 61 and 63). The Government argued that he had been assisted by personal care workers and detainees, while he stated that assistance had only been provided by inmates as the facilities had not employed staff to assist him with his daily needs. 83. The Court has previously held that in certain instances the respondent Government alone have access to information capable of firmly corroborating or refuting allegations under Article 3 of the Convention and that failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations (see, for example, Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).", "84. In this respect, the Court considers that it was for the Government in the present case to demonstrate that the detention authorities had arranged the necessary general care and assistance for the applicant, who had been clearly unable to care for himself independently owing to serious leg impairment. The Government however failed to submit any evidence, such as staff registration logs or employment certificates, statements by attending doctors, by the medical staff who had allegedly cared for him or, at least, by the applicant’s inmates, confirming that the detention facilities accommodating him had employed a sufficient number of personal care workers and that the staff had provided him with the necessary assistance with his daily needs. The applicant, on the other hand, not only gave a detailed and consistent description of the circumstances, but provided the Court with statements by his inmate confirming his allegations (see paragraph 63 above). In these circumstances the Court concludes that the applicant was left received no assistance from trained staff, but was forced to rely entirely on the help of his inmates.", "85. The Court has already found a violation of Article 3 of the Convention in cases in which prison staff felt that they had been relieved of their duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, first aid (see, Semikhvostov v. Russia, no. 2689/12, § 85, 6 February 2014, and, mutatis mutandis, Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). The circumstances of the present case are even more acute because the applicant’s need for bedside assistance was exceptionally high.", "It is evident that his inmates were unable to provide such enhanced assistance, which requires special skills and knowledge. This fact is accentuated by the presence of bedsores, developed outside the hospital, which were recorded by the resident doctor and noted by the independent medical expert as a sign of neglect on the part of the authorities (see paragraphs 30 and 35 above). The Court is prepared to conclude that the developed bedsores indicated that the applicant was not repositioned regularly, was forced to spend much time in bed in one position, and was not regularly bathed or his skin was not kept clean. The situation was further aggravated by the fact that the applicant suffered from bladder and bowel dysfunction (see paragraph 32 above). The absence of proper general care and assistance could have also contributed to development of the bedsores, through the delay in notifying the prison doctors of their appearance, given that the inmates assisting the applicant were not trained to duly recognise the early signs of bedsores or offer treatment to prevent them developing further.", "86. In addition, the Court finds that the applicant’s inevitable dependence on his inmates and the need to ask for their help with intimate hygiene procedures put him in a very uncomfortable position and adversely affected his emotional well-being, impeding his communication with the cellmates who could have been dissatisfied with the burdensome work they had to perform involuntarily. 87. In addition, the conditions of the applicant’s detention were further exacerbated by the failure to provide him with, as is apparent from the documents submitted by the parties, a hospital bed or any other equipment, such as a special pressure-relieving mattress, which could have afforded him at the very least a minimum level of comfort during more than a year of detention. 88.", "To conclude, the Court finds that the conditions of the applicant’s detention in the remand prisons were such as to qualify as inhuman and degrading treatment. There has thus been a violation of Article 3 of the Convention on that account. (c) Conditions of transfer 89. The Court reiterates that the applicant complained about the conditions of his transfer to the correctional colony from the first train station to the final destination. He gave a sufficiently detailed and consistent description of the conditions in which he was transferred.", "The respondent Government provided the Court with an itinerary of the trip. They also contended that the conditions of the transfer corresponded to the needs of bedridden patients. They did not however submit any information as to the special adjustments made or equipment installed on the trains or prison van in which the applicant travelled. The only items of evidence lodged by the Government which could have shed at least some light on the conditions of the applicant’s transfer were the written statements by two escort officers. They noted that the applicant had spent about two hours lying on a thin blanket on the hard floor of the prison van while being taken to and from the remand prison in Yaroslavl the only reason being for, it appears, a change in the escort crew (see paragraph 40 above).", "The Court notes that the escort officers’ statements supported the applicant’s statements that in Yaroslavl he had been transported lying on the floor of a prison vehicle. 90. In these circumstances, the Court accepts the veracity of the applicant’s description of the conditions of his transfer and will base on it the examination of his complaint in this respect (see Yevgeniy Bogdanov v. Russia, no. 22405/04, § 103, 26 February 2015, and Igor Ivanov v. Russia, no. 34000/02, §§ 34‑35, 7 June 2007).", "91. The Court observes that the applicant was transported to the correctional colony in standard train carriages and prison vans with no special equipment installed to meet the needs of a bedridden person suffering from a serious back condition and bladder problems. The first part of the trip took nine hours, during which he was confined to a bunk in the train carriage. The trip, which could have presented no serious issues for a healthy inmate, had an evident detrimental effect on the applicant. 92.", "The Court has established that during the following part of the trip he spent at least two hours being driven in a prison van to and from a detention facility in Yaroslavl. The Court is concerned that the authorities failed to take any corrective measures to meet the applicant’s needs during the transfer, treating with indifference his complaints of acute pain when he was lying on the hard floor of the prison van or being carried around on a blanket used as a stretcher. His being placed directly on the floor of the van exposed him to vibrations from the road during the journey and resulted in him suffering additional pain. Given his fragile condition, the Court is mindful of the possible negative impact such treatment could have had for his back and legs. 93.", "The applicant’s trip to the correctional colony was completed after a further five hours on a train and a journey in a prison van. The Court does not find any evidence that the conditions on the train or in the van were in any way different from those during the first part of his trip. 94. In these circumstances, the Court takes the view that the cumulative effect of the material conditions of the applicant’s transfer, and the duration of the trip, were serious enough to qualify as inhuman and degrading treatment within the meaning of Article 3 of the Convention (see Tarariyeva v. Russia, no. 4353/03, §§ 112-117, ECHR 2006‑XV (extracts)).", "95. There has therefore been a violation of Article 3 of the Convention on account of the conditions of the applicant’s transfer to the correctional colony. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 96. The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been based on sufficient reasons.", "He relied on Article 5 § 3 of the Convention, which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The parties’ submissions 97. The Government argued that the Russian courts had authorised the applicant’s arrest because they had had sufficient reasons to believe that he had committed a serious criminal offence. When authorising or extending his detention, they had taken into account the seriousness of the charges, the nature of the criminal offences in question, and the risk of him absconding if released.", "Given that the applicant had been on the run from January to July 2013, and a forged passport had been discovered in his flat during a search, the courts had correctly considered this to be a real risk. Moreover, they had duly considered the applicant’s state of health and examined the possibility of applying other, less strict preventive measures, but had found them insufficient to offset the above-mentioned risks. 98. The applicant argued that the authorities had known of his serious illness, and that his state of health had warranted his release. His diagnosis had diminished the risk of him absconding or reoffending.", "However, the courts had continued extending his detention on far-fetched grounds. The detention orders had been issued as a mere formality. B. The Court’s assessment 1. Admissibility 99.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. The complaint must therefore be declared admissible. 2. Merits (a) General principles 100. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of his or her continued detention, whatever other grounds may exist.", "In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable.", "A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify his or her continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8).", "Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). 101. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention.", "Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention.", "It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012, and Suslov v. Russia, no. 2366/07, § 86, 29 May 2012, with further references).", "(b) Application to the present case 102. The applicant was arrested on 16 July 2013 and convicted on 13 January 2014. The period to be taken into consideration is therefore slightly less than six months. 103. It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion that he had committed large‑scale fraud and presented a flight risk.", "It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings. 104. The seriousness of the charges was one of the factors for assessing the applicant’s potential to abscond, reoffend or obstruct the course of justice (see paragraphs 9, 12, 16 and 17 above). However, the Court has repeatedly held that, although the severity of the sentence faced is a relevant element in assessing the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Panchenko v. Russia, no.", "45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov, cited above, § 81; and Letellier v. France, 26 June 1991, § 51, Series A no. 207). The Court will therefore examine whether the other grounds referred to by the domestic courts were sufficient to justify the applicant’s detention. 105.", "The Court observes that while extending the applicant’s detention, the Russian court attached particular weight to the risk of him absconding. The evaluation of that risk was based on his previous behaviour, namely his attempt to abscond and his being on the run from January to July 2013; his being unemployed and thus having no ties with his place of residence in Moscow, and the discovery by the police of a forged passport (see paragraphs 9, 12, 16 and 17 above). 106. The Court accepts the reasonableness of the Russian courts’ concerns that the applicant was likely to abscond. The evidence before them convincingly demonstrated that such a risk existed.", "The applicant had previously attempted to escape (see paragraph 8 above) and had again demonstrated to the authorities his determination to go on the run when they discovered the false passport (see paragraph 15 above). His unemployment could not, on its own, warrant his detention, but was capable of adding weight to the Russian courts’ finding that he posed a flight risk. 107. The Court also finds it significant that when deciding whether it was necessary to continue the applicant’s detention, the Russian courts took into account his condition after hearing from the attending doctors or examining other medical evidence. The Court does not lose sight of the fact that the applicant’s state of health drastically changed in October 2013 when he lost the ability to move unaided.", "In November 2013 it appears he entirely lost the use of his legs. While the Court accepts that those developments decreased the risk of him absconding, the risk was not entirely eliminated given his resourcefulness both when it came to his financial situation and his ability to organise his escape, including through the forgery of official documents. The Court therefore accepts that the Russian courts thoroughly evaluated and balanced the risk in question (see Amirov v. Russia, no. 51857/13, § 108, 27 November 2014, in which no violation of Article 5 § 3 of the Convention was found on account of the continued detention on remand of a wheelchair-bound inmate with a need for constant medical supervision). 108.", "The Court concludes that there were relevant and sufficient grounds for the applicant’s detention pending investigation and trial. The assessment of these reasons, however, cannot be detached from the actual length of detention on remand. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. 109. In the present case, the applicant was held in detention on remand for less than six months.", "The domestic courts assessed the diligence of the investigative authorities and concluded that the length of the investigation was justified by the complex nature of the case. The Court notes that there is nothing in the material submitted to show any significant period of inactivity on the part of the prosecution or the court (see, for similar reasoning, Amirov, cited above; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Sopin v. Russia, no. 57319/10, 18 December 2012; Arutyunyan v. Russia, no. 48977/09, 10 January 2012; and Buldashev v. Russia, no.", "46793/06, 18 October 2011). In such circumstances, the competent domestic authorities cannot be said to have not displayed special diligence in handling the applicant’s case. 110. There has accordingly been no violation of Article 5 § 3 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 111. The applicant complained that his appeals against the detention orders of 17 July and 13 September 2013 had not been examined speedily. He relied on Article 5 § 4 of the Convention, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Submissions by the parties 112. The Government acknowledged that there had been a violation of the applicant’s rights under Article 5 § 4 of the Convention, since his appeals against the detention orders of 17 July and 13 September 2013 had not been examined speedily. 113.", "The applicant maintained his complaint and took note of the Government’s admission. B. The Court’s assessment 1. Admissibility 114. 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. 2. Merits 115. The Court takes note of the Government’s acknowledgment of the violation of Article 5 § 4 of the Convention.", "It notes that the applicant’s appeals against the detention orders dated 16 July and 13 September 2013 were examined by the domestic courts in thirty-four and sixty days respectively (see paragraphs 11 and 14 above). In these circumstances, and having regard to its case-law (see, for example, Idalov, cited above, §§ 154‑158), the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of that provision. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 116.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 117. The applicant claimed 35,000 euros (EUR) in respect of non‑pecuniary damage. 118. The Government argued that the amount claimed was excessive.", "119. The Court, making its assessment on an equitable basis, considers it reasonable to award EUR 19,500 in compensation for non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 120. The applicant also claimed EUR 500 for legal services.", "121. The Government argued that the applicant had not provided any evidence in support of his claim to show that those expenses had indeed been incurred. 122. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the lack of relevant documents and the above criteria, the Court rejects the applicant’s claim for costs and expenses.", "C. Default interest 123. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been no violation of Article 3 of the Convention on account of the quality of medical treatment provided to the applicant in detention; 3.", "Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in the remand prisons; 4. Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant’s transfer to the correctional colony; 5. Holds that there has been no violation of Article 5 § 3 of the Convention; 6. Holds that there has been a violation of Article 5 § 4 of the Convention; 7. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "FOURTH SECTION CASE OF RUPA AND ŢOMPI v. ROMANIA (Application no. 60272/09) JUDGMENT STRASBOURG 2 May 2017 This judgment is final but it may be subject to editorial revision. In the case of Rupa and Ţompi v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Iulia Motoc,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 4 April 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 60272/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Mr Iosif Gabriel Rupa (“the first applicant”) and Mrs Rita Țompi (“the second applicant”), on 4 November 2009.", "2. The applicants were represented by Mr I. Lazăr, a lawyer practising in Alba‑Iulia. The Romanian Government (“the Government”) were represented by their co-agent, Ms I. Cambrea, and their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. On 23 January 2012 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1992 and is currently serving a prison sentence in Aiud Prison, while the second applicant is his mother and lives in Aiud. 5. The first applicant was arrested on 24 October 2008 on suspicion of multiple thefts, together with several other accused.", "He was 15 years old at the time. The prosecutor ordered that he be remanded in custody for ten hours and applied for him to be placed in pre-trial detention for fifteen days. 6. The Alba-Iulia District Court (“the District Court”) allowed the prosecutor’s office’s application the same day. The reasons adduced by the court to justify the first applicant’s detention were the strong suspicion that the offences had been committed, as well as the repeated nature and the gravity of the offences.", "7. In assessing the impact on the public the first applicant’s release from detention would have, the court stressed that the acts had allegedly been committed by a significant number of perpetrators over a long period of time. It noted that prior measures against the first applicant, such as a warning and two administrative fines, had been unable to prevent him from committing further thefts. 8. In an indictment dated 18 November 2008 the prosecutor’s office attached to the District Court charged the first applicant and six other defendants with thirteen counts of theft allegedly committed between 25 April and 9 September 2008.", "9. The first applicant’s pre-trial detention was regularly extended by interlocutory judgments of the District Court. 10. The reasons adduced by the court were that, although he was a minor, there was a reasonable suspicion that he was guilty of the thefts and would pose a danger to public order, given that he had developed a habit of stealing. His age was not considered to be an argument in favour of his release pending trial.", "Furthermore, in one of the interlocutory judgments it was mentioned that he did not have an occupation or place of work and thus would be unable to support himself by honest means – there was therefore a risk that he would continue to commit theft. 11. The first applicant lodged appeals on points of law against the extension of his detention. He claimed, inter alia, that he was a minor, that he had committed the offences under the influence of his co‑defendants, who were adults with a criminal record, and that his detention among adults without access to education had had a negative impact on him. He also stated that, under national law and the Court’s case-law, detention of a minor should be a preventive measure of last resort.", "12. The Alba County Court consistently dismissed the first applicant’s appeals, endorsing the reasoning of the lower court for keeping him in detention. 13. The first applicant lodged a request for his pre-trial detention to be replaced with alternative measures, such as a ban on him leaving town. He said that he had already been detained for 180 days and therefore the initial reasons for extending his detention no longer applied.", "He also submitted that he had had time to understand the consequences of his criminal behaviour and had changed. The second applicant and the first applicant’s uncle made written statements promising to take responsibility for supervising him if released, and presented to the court a job offer that he could take up if released. 14. On 15 June 2009 the District Court dismissed the first applicant’s request. It had regard to the gravity of the offences allegedly committed by him, the severity of the sentence that could be applied to him and the risk of him reoffending.", "The judgment was upheld by the Alba County Court, which dismissed the first applicant’s appeal on points of law for the same reasons. 15. On 23 November 2009 the first applicant was eventually convicted of theft and sentenced to five years’ imprisonment by the District Court. On 17 May 2010 an appeal on points of law by him against this judgment was dismissed by the Alba Court of Appeal. 16.", "According to information submitted by the Government, the first applicant was detained in prisons for adults between 24 October 2008 and 9 March 2010, but did not share his cells with adult prisoners. Moreover, between 24 October and 24 November 2008 he occupied an individual cell. His contact with adult prisoners was very limited. II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS 17.", "Article 160h of the Romanian Code of Criminal Procedure, as in force at the time of the events, provided that for minors between 14 and 16 years of age pre-trial detention could only be extended on an exceptional basis. 18. Relevant international materials concerning the deprivation of liberty of juveniles are set out in the cases of Nart v. Turkey (no. 20817/04, §§ 17‑19, 6 May 2008) and Blokhin v. Russia ([GC], no. 47152/06, §§ 79, 82, 86 and 87, ECHR 2016).", "THE LAW I. PRELIMINARY ISSUE 19. The Government noted that the application had been lodged by the first applicant, a minor at the time, and his mother, the second applicant. The first applicant had since reached the age of majority and had been represented before the Court by a lawyer of his choice. They submitted that since the second applicant had not claimed to be victim of a violation of her rights set forth in the Convention, the part of the application concerning her should be dismissed as inadmissible ratione personae with the provisions of the Convention.", "20. The applicants did not file any submissions in this connection. 21. The Court notes that the application form was lodged jointly by the first and second applicants, at a time when the first applicant was still a minor. The second applicant was his legal representative in the domestic proceedings, but did not bring any complaints of her own before the Court.", "22. That being so, the Court considers that the second applicant cannot claim to be a victim within the meaning of Article 34 of the Convention and that the application, in so far as it concerns her, must be declared inadmissible as being incompatible ratione personae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 23. The first applicant complained that his pre-trial detention had been unreasonably long and that the domestic courts had provided stereotyped reasoning for keeping him in detention, without taking into account the fact that he was a minor.", "He relied on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 24. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The Government’s submissions 25. The Government submitted that the first applicant’s pre‑trial detention had been justified by the evidence against him and the gravity of the offences. The District Court had only ordered the first applicant’s pre‑trial detention after noting that other more lenient measures, such as a warning and two administrative fines, had been unable to prevent him from committing further thefts.", "It had also noted that he had been a minor at the time. The domestic courts’ decisions extending the first applicant’s pre‑trial detention had been duly reasoned, providing replies to all the arguments raised by the first applicant and his lawyer. 26. The Government also contended that the domestic authorities had handled the case with diligence. A bill of indictment had been issued four months after the first applicant had been remanded in custody, and the criminal proceedings against him had lasted less than two years.", "2. The Court’s assessment 27. The Court will examine the first applicant’s complaint in the light of the general principles emerging from its case-law concerning the reasonableness of detention within the meaning of Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84-91, ECHR 2016). 28.", "The Court notes from the outset that the applicant was taken into custody on 24 October 2008 (see paragraph 5 above) and sentenced by the first‑instance court on 23 November 2009 (see paragraph 15 above). Consequently, the total duration of his pre-trial detention amounted to one year and one month. 29. The Court also notes that under the important international texts referred to above (see paragraph 18 above) the pre-trial detention of minors should only be used as a measure of last resort; it should be as short as possible and, where detention is strictly necessary, minors should be kept apart from adults (see Nart v. Turkey no. 20817/04, § 31, 6 May 2008).", "30. Moreover, under the Romanian Code of Criminal Procedure, in force at the relevant time, minors should only be remanded in pre-trial detention on an exceptional basis (see paragraph 17 above). 31. The Court has already found violations of Article 5 § 3 of the Convention where children have been held in pre-trial detention for considerably shorter periods than that spent by the applicant in the present case (see Selçuk v. Turkey, no. 21768/02, §§ 30-37, 10 January 2006; and Nart, cited above, §§ 29-35).", "For example, in Selçuk the applicant spent four months in pre-trial detention when he was 16 years old and in Nart the applicant spent forty-eight days in detention when he was 17 years old. In the present case, the first applicant was detained from the age of 15 and kept in pre‑trial detention for a period of one year and one month. 32. Furthermore, the case file reveals that, during his detention, the first applicant was kept in a prison together with adults (paragraph 16 above). However, the Court notes that he did not raise any complaint about this in his initial application and therefore this issue is not within the scope of the present case before the Court.", "33. The Court notes that, although the domestic courts repeatedly relied on the validity of the initial grounds justifying the first applicant’s detention – the fact that he posed a danger to public order, the severity of the sentence if convicted, the fact that he was a repeat offender and the risk of him committing further offences – they failed, with the passage of time, to give specific reasons why terminating his pre-trial detention would have a negative impact on society or on the investigation (see paragraphs 10 and 14 above). 34. The Court accepts that the first applicant’s detention may initially have been warranted by a reasonable suspicion that he had committed serious repeated offences. However, with the passage of time, those grounds inevitably became less and less relevant.", "Accordingly, the domestic authorities were under an obligation to examine his personal situation in greater detail and give specific reasons for holding him in custody (see Tiron v. Romania, no. 17689/03, § 40, 7 April 2009, and Leontiuc v. Romania, no. 44302/10, § 77, 4 December 2012). 35. In the light of the foregoing, the Court considers that in the circumstances of the present case the domestic authorities failed to give comprehensive reasoning for applying a custodial measure to a 15 years old applicant for almost a year and one month which, under both international and domestic law, should have only been used as a measure of last resort.", "36. There has therefore been a violation of Article 5 § 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. 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 38. The first applicant claimed 1,664 euros (EUR) in respect of pecuniary damage for loss of the salary that he could have earned from the company which had offered him a job between 1 October 2009 and 17 June 2010 (when his conviction was upheld by the appellate court). He also claimed EUR 71,336 in respect of non-pecuniary damage. 39. The Government argued that there was no causal link between the alleged violation and the loss of salary claimed by the first applicant.", "Moreover, they considered the sum claimed in respect of non‑pecuniary damage excessive and argued that a finding of a violation would constitute sufficient just satisfaction. 40. The Court shares the Government’s view that there is no causal link between the violation found and the pecuniary damage claimed (see, mutatis mutandis, Khudoyorov v. Russia, no. 6847/02, § 221, ECHR 2005‑X (extracts)), and therefore rejects this claim. On the other hand, it considers that the first applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation.", "Making its assessment on an equitable basis, the Court awards the first applicant EUR 660 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 41. The first applicant did not ask for a reimbursement of any costs and expenses. The Court therefore makes no award under this head.", "C. Default interest 42. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 5 § 3 of the Convention in respect of the first applicant admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3.", "Holds (a) that the respondent State is to pay the first applicant, within three months, EUR 660 (six hundred sixty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF DİRİ v. TURKEY (Application no. 68351/01) JUDGMENT STRASBOURG 31 July 2007 FINAL 31/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Diri v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B.", "Baka,MrR. Türmen,MrM. Ugrekhelidze,MrV. Zagrebelsky,MrsA. Mularoni,MrD.", "Popović, judges,and Mrs F. Elens-passos, Deputy Section Registrar, Having deliberated in private on 10 July 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 68351/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Sabri Diri (“the applicant”), on 2 March 2001. 2. The applicant, who had been granted legal aid, was represented by Mr Elban and Mr Kırdök, lawyers practising in Istanbul.", "The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3. The applicant alleged in particular that he had been ill-treated during his detention in the Tekirdağ F-Type Prison and that the authorities had failed to conduct an effective investigation into his allegations. He invoked Articles 3 and 13 of the Convention. 4.", "On 15 April 2001 the applicant asked the Court to request the Turkish Government, under Rule 39 of the Rules of Court, to order a medical examination of the applicant, with a view to establishing the traces of falaka. 5. On 31 May 2001 the President of the Third Section of the Court decided to apply Rule 39 of the Rules of Court and informed the respondent Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to conduct a medical examination of the applicant, in particular a Magnetic Resonance Imaging (MRI) scan and/or a bone scintigraphy. 6. On 20 January 2006 the Court decided to give notice of the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1969 and currently lives in Switzerland. Background to the case 8.", "The applicant, convicted of membership of an illegal organisation, was serving his prison sentence in the Ümraniye E-Type Prison in Istanbul at the time of the events. 9. In December 2000 a large number of prisoners, including the applicant, started a hunger strike to protest against the F-Type prisons. On 19 December 2000 the security forces conducted an operation in several prisons to stop the protests. In the course of these operations, numerous prisoners and members of the security forces were wounded and 32 persons died.", "Following these events, on 22 December 2000 the applicant was transferred from Ümraniye E-Type Prison to the Kocaeli Kandıra F-Type Prison, together with several other prisoners. The Government stated that the applicant showed resistance to the security forces during the operation in the Ümraniye E-Type Prison. In a medical report issued by the Kocaeli Kandıra F-Type Prison doctors on 22 December 2000, it was noted that the applicant had scars on the right side of his jaw and nose; bruises on his eye lids, a round hyperaemic oedema on his head measuring 3 cm and sensitivity on his abdomen. The report concluded that the applicant was unfit to work for one week. The applicant maintained that he was beaten on admission to the Kandıra F-Type Prison.", "The applicant's detention in the Tekirdağ F-Type Prison 10. On 23 February 2001 the applicant was transferred to the Tekirdağ F‑Type Prison. On admission to the prison, he was allegedly strip searched and beaten and his hair and moustache forcibly cut. He also stated that he was put in a cell alone and was forced to listen to loud music. According to the applicant, as he refused to stand up and shout his name during the daily headcounts, he was subjected to ill-treatment by the prison guards, in particular falaka (beating on the soles of the feet).", "11. On 24 February 2001 and 3 March 2001, respectively, the applicant was examined by the prison doctor, who did not find any signs of ill-treatment on the applicant's body. 12. On 4 March 2001 the applicant's lawyer filed a petition with the Tekirdağ public prosecutor's office and complained about the ill-treatment which the applicant had suffered in the Tekirdağ prison. He also requested that the applicant be examined by a forensic doctor.", "13. The Tekirdağ public prosecutor initiated an investigation into the applicant's allegations. Upon the order of the public prosecutor, on 8 March 2001 the applicant was examined once again by the prison doctor, who reported that there were no signs of ill-treatment on his body. On the same day, the Tekirdağ public prosecutor took a statement from the applicant. Before the prosecutor, the applicant explained that, on admission to the Tekirdağ Prison, the prison personnel had shaved his hair and moustache by force and that he had been stripped naked.", "He further maintained that he had been placed in a single cell and subjected to falaka twice. 14. On 14 March 2001 the public prosecutor issued a decision of non‑prosecution relying on the medical reports dated 24 February, 3 March and 8 March 2001, according to which there was no sign of ill-treatment on the applicant's body. 15. On 6 April 2001 the applicant filed an appeal against the decision of the public prosecutor.", "16. On 19 April 2001 the Kırklareli Assize Court rejected the applicant's appeal. 17. Following the introduction of the present application, on 31 May 2001 the Court requested the Government to conduct further medical examinations on the applicant, namely a bone scintigraphy and a Magnetic Resonance Imaging scan (MRI). 18.", "On 26 June 2001 the Government submitted two medical reports dated 13 and 14 June 2001 which had been drawn up as a result of the MRI scan and the bone scintigraphy respectively. The MRI report dated 13 June 2001 stated the following: “Bone signal intensity was normal. Bone contours were regular. Achilles tendon signal characteristics and thickness were normal. No pathology in the soft tissues was detected.", "Result: Normal Note: An increased intensity observed in the fat suppression sequences in the medial regions of both feet is attributed to the coil artefact.” The bone scintigraphy report dated 14 June 2001 read as follows: “Examination of dynamic, blood flow and blood pool images of both feet taken following intravenous injection of 20mCi Tc-99m MDP and of delayed static and anterior/posterior images of the whole body taken four hours later revealed the following: In both feet, blood flow was normal; increased activity uptake was observed in the blood pool phase in the areas of the lower extremity of the left tibia and the ankle. The delayed static images revealed increased radiopharmaceutical uptake in the lower extremities of both tibias and in the bones of the big toe (more noticeable in the right foot). Increased radiopharmaceutical uptake was also observed in the left-tibia joint and the upper fibula. Apart from in the regions indicated above, radiopharmaceutical distribution and uptake in the skeletal system fell within normal limits. Both kidneys were visualised slightly.", "Conclusion: The increased radiopharmaceutical uptake in the regions described above is indicative of traumatism.” 19. On 19 July 2001, taking into account the applicant's poor health due to the hunger strike, the authorities released him from prison for six months. 20. On 25 September 2001 the Tekirdağ public prosecutor requested the Forensic Medicine Institute to make an assessment of the applicant's bone scintigraphy result, in particular to indicate the cause of the findings mentioned in the report. 21.", "In the meantime, on 16 October 2001 having regard to the findings indicated in the bone scintigraphy, the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus (yazılı emir) should be issued to restart the investigation into the applicant's allegations of ill-treatment. On 17 October 2001 the General Directorate of Criminal Law Issues wrote to the Tekirdağ public prosecutor, requesting his opinion on the matter. In his reply dated 28 December 2001, the public prosecutor argued that, as the bone scintigraphy test did not reveal the exact cause or the timing of the injuries, a writ of mandamus to quash the decision of the Kırklareli Assize Court could not be issued in the circumstances of the present case. 22. On 30 November 2001 the Forensic Medicine Institute replied that the findings mentioned in the bone scintigraphy report could not have resulted from rheumatism or the hunger strike, but were caused by a trauma.", "23. On 7 December 2001 the Tekirdağ public prosecutor asked the Forensic Medicine Institute to clarify whether it was possible to determine the date when these injuries had been sustained. 24. On 12 December 2001 the Forensic Medicine Institute replied that it was not possible to make such an assessment. 25.", "The applicant returned to the Tekirdağ F-Type Prison on 5 April 2002, but was released once again on 12 April 2002 for another six months. 26. On 2 September 2006 the applicant's lawyer requested an additional expert report from Dr Şebnem Korur Fincancı, a forensic expert. Dr Fincancı was asked to evaluate the findings of the bone scintigraphy test dated 14 June 2001 and to assess whether the findings indicated in the report matched the applicant's allegation of falaka. In this connection, Dr Fincancı was provided with a written statement by the applicant, in which he gave a detailed description of the ill-treatment to which he had been subjected in the Tekirdağ F-Type Prison.", "In this statement, the applicant explained that, as a protest against the F-Type prison system, he had refused to stand up and shout his name out during the daily headcounts. When he did not obey the warnings of the prison guards, a large group of guards entered his cell and started beating him, while two guards held his arms and another two secured his feet. Then one guard sat on the applicant's abdomen and another placed his hand over the applicant's mouth. After they had tied his feet with a belt, several guards struck his feet with their belts. 27.", "In her report dated 11 September 2006, Dr Fincancı concluded that when the static and dynamic images of the bone scintigraphy test were examined together, the findings in the report corresponded to the applicant's allegation of falaka. She further opined that the trauma complained of was inflicted on the applicant about three months prior to the test. While drafting her report, Dr Fincancı had regard to the applicant's previous medical reports dated 22 December 2000, 24 February 2001, 3 March 2001 and 8 March 2001. 28. In response to the report of Dr Fincancı, the Government submitted another report issued by the Forensic Medicine Institute dated 9 January 2007 which contradicted Dr Fincancı, stating that the findings in the bone scintigraphy test did not reveal the cause of the injuries on the applicant's feet and that it was not possible to make an evaluation as to when these injuries could have been sustained.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29. The applicant complained in the first place that the prison conditions in the Tekirdağ F-Type Prison breached Article 3. He maintained in particular that on admission to the prison he had been strip searched and his hair and moustache forcibly cut. He also maintained that he had been kept alone in a cell and forced to listen to loud music.", "Secondly, the applicant complained that he had been beaten and subjected twice to falaka, when he refused to participate in the daily headcounts. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 30. The Government contested those arguments. A. Concerning the conditions of detention 31.", "The applicant complained under Article 3 that, on admission to the Tekirdağ F-Type Prison, he had been strip searched and his hair and moustache forcibly shaved; he had been kept in a cell alone and subjected to loud music. 32. The Court recalls that it has in the past examined similar complaints and declared them inadmissible (see, Gündoğan v. Turkey (dec.), no. 29/02, 13 December 2005; Yılmaz Karakaş v. Turkey (dec.), no. 68909/01, 9 November 2004).", "It finds no particular circumstances in the instant case, nor any elements apt to disclose treatment of the prohibited severity, which would require it to depart from this jurisprudence. 33. In view of the above, the Court concludes that the applicant has not laid the basis of an arguable claim and that this part of the application should therefore be declared inadmissible as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. B. Concerning the alleged ill-treatment 1.", "Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.", "Merits a) The alleged ill-treatment i. General principles 35. The Court reiterates that Article 3 of the Convention ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. It also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human rights requires that these provisions be interpreted and applied so as to make its safeguards practical and effective (see Avşar v. Turkey, no.", "25657/94, § 390, ECHR 2001-VII (extracts)). 36. Furthermore, the Court reiterates that, in respect of a person deprived of liberty, recourse to physical force which has not been made strictly necessary by the individual's own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 38; Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).", "37. Where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny (see Ülkü Ekinci v. Turkey, no. 27602/95, § 135, 16 July 2002) and will do so on the basis of all the material submitted by the parties. 38. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt” (see Orhan v. Turkey, no.", "25656/94, § 264, 18 June 2002; Avşar, cited above, § 282). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ülkü Ekinci, cited above, § 142). 39. Furthermore, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no.", "21986/93, § 100, ECHR 2000-VII). ii. Submissions of the parties 40. In the present case, the applicant complained that he had been subjected to falaka twice, when he resisted standing up and shouting his name out during the daily headcounts. 41.", "The Government denied that the applicant had been ill-treated. They stated that the applicant must have sustained these injuries in the course of the incidents that took place in December 2000 in the Ümraniye E-Type Prison. They also stated that the applicant's allegation that he had been subjected to falaka in the Tekirdag F-Type Prison was unsubstantiated since there was twenty-four hour video surveillance in that prison. The Government further explained that the applicant had been examined three times by the prison doctor who had found no traces of ill-treatment on his body. They argued that, since there were no traces on his body, the doctor was not required to transfer the applicant to a hospital for further tests.", "Any such obligation in that regard would, in the Government's opinion, impose an excessive burden on the authorities. They also maintained that, although the bone scintigraphy results revealed that the applicant's feet had been exposed to trauma, in their view this did not necessarily mean that the applicant had been subjected to falaka as alleged. A trauma could have been caused by stress or insufficiency fractures. In this connection, the Government referred to the fact that the applicant had been on a hunger strike for a long time and that his bones had been weakened due to improper nourishment and a lack of physical exercise. In the absence of any concrete evidence proving the origin and the timing of the injuries, the Government maintained that the applicant's ill-treatment allegations should be considered as unsubstantiated.", "iii. The assessment of the Court 42. In line with the above-mentioned case-law, the Court remains free to make its own assessment in the light of all the material before it (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 86, ECHR 1999‑V). 43.", "The Court notes that the findings indicated in the bone scintigraphy report dated 14 June 2001 and the medical report issued by the Forensic Medicine Institute on 30 November 2001 are consistent with the applicant's allegation that he had been subjected to falaka in the Tekirdağ F-Type Prison. As clearly indicated in these reports, the injuries to the applicant's feet could not have been caused by rheumatism or the result of his hunger strike. They could only have been sustained by trauma. The Court takes note of the Government's observations that these injuries must have been caused during the incidents which took place in the Ümraniye E-Type Prison in December 2000. In this connection, it refers to the medical report dated 22 December 2000, which noted several injuries on the applicant's body.", "The Court does not see any reason why the doctors who examined the applicant on 22 December 2000 would not have reported the injuries to the applicant's feet if they had been sustained on that occasion. It further notes that the Government maintained that the trauma could have been caused by stress fractures or insufficiency fractures; however these submissions are not supported by any convincing evidence. As a result, the Court concludes that the injuries to the applicant's feet must be attributable to a form of ill-treatment for which the authorities at Tekirdağ bore responsibility. 44. As to the seriousness of the treatment in question, the Court reiterates that, under its case-law in this sphere (see, among other authorities, Selmouni, cited above, §§ 96-97), in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment.", "It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. 45. In this connection, the Court considers that the treatment complained of was inflicted on the applicant intentionally by the prison guards with the purpose of punishing him and of breaking his physical and moral resistance to the prison administration. In these circumstances, the Court finds that this act was particularly serious and cruel and capable of causing severe pain and suffering. It is therefore concludes that this sort of ill-treatment amounted to torture within the meaning of Article 3 of the Convention.", "46. There has consequently been a violation of Article 3 on that account. b) The alleged inadequacy of the investigation 47. The applicant further maintained, under Article 3, that the authorities had not conducted an adequate investigation into his complaints of ill-treatment. 48.", "The Government denied this allegation. They stated that the domestic authorities had conducted a serious investigation into the applicant's allegations. 49. The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible.", "Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 50. Turning to the facts of the present case, the Court observes that the applicant brought his complaints of ill-treatment to the attention of the authorities by filing a complaint with the Tekirdağ public prosecutor on 4 March 2001 (paragraph 12 above). In his petition, the applicant also requested to be examined by a forensic doctor.", "On 8 March 2001, upon the order of the public prosecutor, the applicant was once again examined by the same prison doctor, who did not report any signs of ill-treatment on the applicant's body. The same day, a short statement was taken from the applicant, who repeated his allegations of ill-treatment. At this point, the Court notes with regret that the public prosecutor omitted to request any further medical examination, to take statements from the accused prison guards or to question witnesses and the prison doctor who had drafted the three medical reports dated 24 February 2001, 3 March 2001 and 8 March 2001, before delivering his decision of non-prosecution. In delivering his decision, the prosecutor limited himself to the three medical reports which merely stated that there was no sign of ill-treatment on the applicant's body. The Court recalls in this connection that proper medical examinations are an essential safeguard against ill-treatment.", "The forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope (see, Akkoç v. Turkey, nos. 22947/93 and 22948/93, § 55 and § 118, ECHR 2000‑X). In the instant case, the medical reports dated 3 and 8 March 2001, which were drafted by the prison's own doctor, provided limited medical information and did not include any explanation by the applicant as regards his complaints. 51. The Court also finds it noteworthy that, after the bone scintigraphy results dated 14 June 2001 and the subsequent report of the Forensic Medicine Institute dated 30 November 2001, which confirmed that the injuries to the applicant's feet could only have been sustained by a trauma, the public prosecutor, who had the authority under Article 167 of the Criminal Code to restart the domestic investigation into the applicant's allegations of ill-treatment, took no further action.", "It is further noted that, although the International Law Department of the Ministry of Justice consulted the Directorate General of Criminal Law Issues as to whether a writ of mandamus should be issued to restart the investigation into the applicant's allegations of ill-treatment, the public prosecutor gave a negative opinion on this proposal, stating that the bone scintigraphy results did not indicate the cause or the timing of these injuries. The Court considers that, had the public prosecutor restarted the domestic investigation on the basis of this new evidence, he could have collected valuable information as to how and when these injuries might have been sustained. 52. In the light of the above, the Court concludes that the applicant's claim that he was subjected to falaka during his detention in the Tekirdağ F-Type Prison was not subject to an effective investigation by the domestic authorities as required by Article 3 of the Convention. 53.", "There has therefore been a procedural violation of Article 3 in this regard. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54The applicant alleged under Article 13 that the domestic authorities failed to conduct an effective investigation into his allegations of ill-treatment. 55. The Government contested that argument.", "56. The Court notes that this complaint is linked to the one examined above and must likewise be declared admissible. 57. However, having regard to the finding relating to Article 3 (see paragraphs 49-53 above), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of Article 13. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 58. 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 59. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 60.", "The Government contested the claim. 61. The Court finds that the applicant must have suffered pain and distress which cannot be compensated solely by the Court's finding of a violation. Having regard to the nature of the violation found and ruling on an equitable basis, it awards the applicant EUR 15,000 in respect of non-pecuniary damage. B.", "Costs and expenses 62. The applicant also claimed a total of EUR 9,826.18 for the costs and expenses incurred before the domestic courts and for those incurred before the Strasbourg Court. 63. The Government contested this claim. 64.", "The Court may make an award in respect of costs and expenses in so far that they were actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002). Making its own estimate based on the information available, and ruling on an equitable basis, the Court awards the applicant a global sum of EUR 2,500 in respect of costs and expenses less the sum of EUR 850 received in legal aid from the Council of Europe. C. Default interest 65. 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.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the prison conditions inadmissible and the remainder of the application admissible; 2. Holds that there has been a substantive violation of Article 3 of the Convention on account of the applicant's torture in the Tekirdağ F-Type Prison; 3. Holds that there has been a procedural violation of Article 3 of the Convention on account of the failure of the authorities to conduct an effective investigation into the applicant's allegations that he was tortured in the Tekirdağ F-Type Prison; 4. Holds that there is no need to examine separately the complaint under Article 13 of the Convention; 5.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable: (i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros) received in legal aid; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 31 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. F. Elens-passosF. TulkensDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF ERDŐS v. HUNGARY (Application no. 38937/97) JUDGMENT STRASBOURG 9 April 2002 FINAL 09/07/2002 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Erdős v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrGaukur Jörundsson,MrL.", "Loucaides,MrC. Bîrsan,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 3 May 2001 and 12 March 2002, Delivers the following judgment, which was adopted on that last-mentioned date: PROCEDURE 1. The case originated in an application (no.", "38937/97) against the Republic of Hungary lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Zoltán Erdős, on 16 August 1993. Following Mr Erdős’s death, on 15 February 1999 his son and successor in the domestic proceedings, Mr Zoltán Erdős (“the applicant”) stated that he wished to pursue the application. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary of the Ministry of Justice. 3.", "The applicant alleged, in particular, that the civil proceedings, which began in 1984 before the Buda Central District Court were excessively long. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6. By a decision of 3 May 2001 the Court declared the application partly admissible.", "7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section. 8. The applicant and the Government each filed observations on the merits (Rule 59 § 1).", "THE FACTS 9. In October 1984 the applicant’s father (“the plaintiff”) brought an action against an upholstery workshop. He claimed some outstanding royalty fees on account of the workshop’s manufacture and sale of a series of foldable beds based on his invention. 10. In September 1986 the Buda Central District Court informed the plaintiff that the upholstery workshop as such had no capacity to conduct legal proceedings and that its members were personally required to enter the proceedings as defendants.", "11. On 28 April 1987 the District Court, for reasons of competence, discontinued the proceedings and transferred the case to the Budapest Regional Court. On 4 February 1988 the Regional Court held that it had no competence in the case either, and requested the Supreme Court to designate the competent court. 12. On 5 May 1988 the Supreme Court designated the Buda Central District Court to hear the case.", "On 10 November 1988, 16 February, 26 April, 21 June and 20 October 1989, 20 March and 29 June 1990, the District Court held hearings. Meanwhile, on 13 February 1989 and 15 June 1990 the plaintiff extended his claims. 13. In its judgment of 6 July 1990 the District Court awarded the plaintiff 714,070 Hungarian forints (HUF), plus accrued interest. 14.", "On appeal, on 22 May 1991 the Budapest Regional Court held a hearing, quashed the first-instance judgment and instructed its own competent bench to re-hear the case. It pointed out that, due to the plaintiff’s repeated extensions of his claims, the case was no longer within the District Court’s competence. 15. On 20 December 1991, 17 June, 15 July and 4 November 1992 the Regional Court held hearings. On the latter date it ordered the plaintiff to elaborate his claims within thirty days.", "16. On 7 December 1992 the plaintiff again extended his action and, on 27 January 1993, he filed a memorandum with the Regional Court submitting the precise figures of his claims. 17. On 17 February and 28 April 1993 the Regional Court held hearings. The hearings scheduled for 1 September and 10 December 1993 and 9 March 1994 were adjourned.", "18. On 4 May 1994 the Regional Court decided to obtain a technical expert opinion. On 28 September 1994 it put concrete questions to an expert institution, which on 27 October 1994 renounced the request. On 7 November 1994 another expert was appointed who presented his opinion on 19 December 1994. 19.", "On 1 March 1995 the Regional Court held a hearing. On this occasion the plaintiff again modified his claims. A hearing scheduled for 17 May 1995 was adjourned. On 16 June 1995 the plaintiff further extended his claims. 20.", "On 27 September 1995, 26 January and 3 July 1996 the Regional Court held further hearings. On the latter date the plaintiff was granted a 15-day time-limit to elaborate further the quantification of claims. His memorandum on that subject was returned for supplementation on 1 August 1996. The revised memorandum reached the Regional Court on 9 September 1996. 21.", "On 20 November 1996 the Regional Court held a further hearing and appointed an expert accountant. On 24 January 1997 the Regional Court ordered the plaintiff to advance payment for the expert. 22. On 6 June 1997 the Regional Court declared that the proceedings were interrupted on account of the death of one of the defendants. On 12 December 1997 the proceedings were resumed and a hearing was held.", "23. On 13 February 1998 the Regional Court discontinued, on account of the plaintiff’s partial waiver, the proceedings in respect of some of the defendants. 24. On 25 February 1998 the Regional Court gave a partial judgment and awarded the plaintiff HUF 858,200 plus accrued interest. On 18 March 1998 the plaintiff appealed to the Supreme Court.", "25. On 27 December 1998 the plaintiff died. On 20 October 1999 the applicant and his late father’s widow entered the domestic proceedings as the plaintiff’s successors. 26. On 10 November 1999 the Supreme Court held a hearing.", "27. On 22 February 2000 the Supreme Court gave a second instance judgment, partly amending the decision of 25 February 1998. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 28. The applicant submitted that the civil action brought by his late father was not heard within a “reasonable time” as required by Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ... .” The Government rejected this submission.", "A. Period to be considered 29. The period to be considered began in October 1984, when the applicant’s father brought an action before the Buda Central District Court, and ended on 22 February 2000 when the Supreme Court gave its judgment. They therefore lasted about fifteen years and four months before three levels of jurisdiction. The Court observes that, when examining the length of the proceedings, the period to be considered only begins on 5 November 1992, the date of the Convention’s entry into force in respect of Hungary.", "However, in assessing the reasonableness of the time that elapsed after this date, account must be taken of the then state of proceedings (see the Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53). After this date, the proceedings were pending for another seven years and four months during which period two court instances dealt with the case. B. Reasonableness of the length of the proceedings 30. The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, as a recent authority, Humen v. Poland, [GC], no.", "26614/95, § 60, 15 October 1999). 1. Complexity of the case 31. In the Government’s submission, the case, although simple in nature, became rather complicated on account of the plaintiff’s repeated extensions and modifications of his claims and an increase in the number of defendants. 32.", "Like the applicant, the Court considers that in fact the case was not very complex. 2. Conduct of the parties 33. The Government argued that the delays were largely imputable to the plaintiff’s conduct – in particular, he was repeatedly ordered to supplement his claims – which contributed decisively to the slowing down of the proceedings. The applicant maintained, on the contrary, that his father had shown due diligence.", "34. The Court points out that only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see, among other authorities, the H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, § 55). In the instant case, the Court observes that the plaintiff extended or modified his claims three times, which clearly caused some delay.", "The time required for him to supplement his claims (a 30-day period following 4 November 1992 and a further period between 3 July and 9 September 1996) amounted to some three months altogether. Moreover, some ten months elapsed before the applicant resumed the proceedings after his father’s death (27 December 1998 - 20 October 1999). These delays cannot, therefore, be imputed to the State. 3. Conduct of the judicial authorities 35.", "The Government submitted that the Hungarian courts had acted without procrastination. The applicant contested this. 36. In requiring cases to be heard within a “reasonable time”, the Convention underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see, among other authorities, the H. v. France judgment previously cited, § 58). 37.", "At least two periods of unexplained delay are apparent in the instant case: between 28 April 1993 and 1 March 1995, and 20 November 1996 and 6 June 1997 – periods amounting to some 28 months altogether – the Regional Court’s activity being mostly limited to obtaining expert opinions. 38. Having regard to all the circumstances of the case and, more particularly its overall length, the Court considers that the total duration of the proceedings was excessive. The Court concludes therefore that the case of the applicant’s father was not heard within a “reasonable time”. Consequently, there has been a violation of Article 6 § 1 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 39. 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 40. The applicant claimed 9 million Hungarian forints (HUF) (approximately EUR 37,043) for non-pecuniary damage.", "41. The Government found the applicant’s claim excessive. 42. Having regard to the overall length of the proceedings and ruling on an equitable basis, the Court awards the sum of EUR 5,500 in respect of non-pecuniary damage. B.", "Costs and expenses 43. The applicant claimed HUF 161,749 (approximately EUR 666) for costs and expenses incurred in the domestic proceedings and before the Convention institutions. 44. The Government noted that the applicant was not represented by a lawyer before the Court and submitted that the costs and expenses claimed were mainly incurred in the domestic proceedings. 45.", "Although it is true that only those costs incurred in domestic proceedings in an attempt to prevent or redress the violation found by the Court may be reimbursed, nevertheless unreasonable delays in proceedings necessarily involve an increase in an applicant’s costs (see Bouilly v. France, no. 38952/97, § 33, 7 December 1999). Therefore the Court, making an assessment on an equitable basis, awards the applicant EUR 500. C. Default interest 46. According to the information available to the Court, the statutory rate of interest applicable in Hungary at the date of adoption of the present judgment is 11% per annum.", "FOR THESE REASONS, THE COURT 1. Holds by 6 votes to 1 that there has been a violation of Article 6 § 1 of the Convention; 2. Holds by 6 votes to 1 (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, (i) EUR 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage, and (ii) EUR 500 (five hundred euros) for costs and expenses; (b) that simple interest at an annual rate of 11% shall be payable from the expiry of the above-mentioned three months until settlement; 3. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 April 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "S. DolléJ.-P. CostaRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment: (a) Concurring opinion of Judge Loucaides; (b) Dissenting opinion of Judge Mularoni. J.-P.C.S.D.CONCURRING OPINION OF JUDGE LOUCAIDES I agree with the finding that there has been a violation of Article 6 in this case because of unexplained delays in the proceedings attributable to the judicial authorities of the respondent State. However, my approach differs from that of the majority in two respects: a) On the basis of the material before the Court, I confine my finding only to the periods 28 April 1993 until 28 September 1994 and 20 November 1996 until 6 June 1997, amounting to some 23 months altogether, which, I believe, are excessive. I do not find any other unexplained delays in this case attributable to the State. The nature of the proceedings and, in particular, the conduct of the applicant were basically responsible for the duration of the proceedings.", "b) The majority took into account expressly the “overall length” of the proceedings. In my opinion it is wrong to rely on the “overall length” of any proceedings as being by itself a ground or factor for finding a breach of the obligation under Article 6 of the Convention for a hearing “within a reasonable time”. Such a breach can only be established if there are unreasonable delays in the proceedings attributable to the State. Proceedings may be protracted by the conduct of the applicant or by the complexity and general nature of the case. In such cases, even if the “overall length” of the proceedings is excessive, no responsibility should be borne by any State organ so long as the latter did not contribute in any way to the prolongation of the duration of the proceedings.", "I reiterate here what I have said in the case of Maczynski v. Poland (application no. 43779/98, judgment, 15 January 2002). “It is true that according to the case-law of the Court, the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case. But there is no absolute or objective limit to the length of time that can be taken. The question whether there has been a delay contrary to the requirements of Article 6 § 1 cannot be decided in abstracto with reference only to the total length of the proceedings.", "Whether there has been an unreasonable delay is a matter that must be assessed in the light of the particular facts of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, § 30).” A breach of Article 6 § 1 can only be found where it is established that there have been delays attributable to the State regardless of the total length of proceedings. Thus, in the case of Ciricosta and Viola v. Italy (judgment of 4 December 1995, Series A no. 337-A), in which the period in issue was more than 15 years for civil proceedings that were still pending at the time of the judgment, the Court held: “even though a period of more than fifteen years for civil proceedings that are still pending may, on the face of it, seem unreasonable, the conduct of the applicants ... leads the Court to declare Mr Ciricosta’s and Mrs Viola’s complaint unfounded” (p. 11, § 32). In the same case the Court stated the following: “The Court reiterates in the first place that only delays attributable to the State may justify a finding of failure to comply with the ‘reasonable time’ requirement” (p. 10, § 28).", "DISSENTING OPINION OF JUDGE MULARONI I disagree with the majority that the length of the proceedings was unreasonable. It is true that the proceedings lasted 15 years and 4 months, but apart from the fact that only about 7 years and 3 months are covered by the Convention (since Hungary ratified it on 5 November 1992), I emphasise that “only delays attributable to the State may justify a finding of a failure to comply with the ‘reasonable time’ requirement” (see, among other authorities, the H. v. France judgment of 24 October 1989, Series A no. 162, pp. 21-22, § 55). Even if, according to the Court case-law, “in assessing the reasonableness of the time elapsed after this date, account must be taken of the then state of the proceedings” (see, among other authorities, Foti and others v. Italy judgment of 10 December 1982, Series A no.", "56, p. 18, § 53), it seems to me that the delays were largely attributable to the plaintiff’s conduct. We know from the facts that: 1) in October 1984 the applicant’s father (“the plaintiff”) brought an action against an upholstery workshop. In September 1986 the Buda Central District Court informed him that the upholstery workshop as such had no capacity to conduct legal proceedings and that its members were personally required to enter the proceedings as defendants (hence, as far as I understand, about two years were lost due to the plaintiff’s mistake); 2) on 13 February 1989 and 15 June 1990 the plaintiff extended his claims. On 22 May 1991 the Budapest Regional Court, quashing the first-instance judgment, pointed out that “due to the plaintiff’s repeated extensions of his claims, the case was no longer within the District Court’s competence” (hence, as far as I understand, more than two years were again lost due to the plaintiff’s fault); 3) on 7 December 1992 the plaintiff again extended his action and, on 27 January 1993, he filed a memorandum with the Regional Court submitting the precise figures of his claims; 4) on 1 March 1995 the plaintiff again modified his claims; 5) on 16 June 1995 the plaintiff further extended his claims; we know from the Government’s observations that, at the hearing of 3 July 1996, the applicant again extended his claims; as a consequence the plaintiff was granted a term to elaborate further quantification of his claims; his memorandum was returned for supplementation on 1 August 1996 and the revised memorandum reached the Regional Court on 9 September 1996; 6) on 6 June 1997 the Regional Court declared that the proceedings were interrupted on account of the death of one of the defendants. The proceedings were resumed as early as 12 December 1997 (as far as I understand, the plaintiff waited about 6 months before resuming the proceedings and the judicial authorities cannot be held responsible for this delay); 7) due to the plaintiff’s partial waiver, on 13 February 1998 the Regional Court discontinued the proceedings in respect of some of the defendants; 8) after the plaintiff’s death (27 December 1998), the applicant and his late father’s widow entered the proceedings as the plaintiff’s successors on 20 October 1999 (i.e., about 10 months later).", "We also know from the Government’s observations that: 1) on 28 April 1993 the court granted the plaintiff a respite till 1 June to enable him to elaborate his legal opinion on the defendant’s submissions lodged in the meantime; 2) on 1 September 1993 the plaintiff requested the court for a respite as a new legal representative had entered the suit. Therefore the court adjourned the hearing till 10 December, pointing out the claims the plaintiff was expected to specify within 45 days. On 10 December 1993 some of the defendants requested the court to adjourn the hearing on account of the new claims raised; 3) the new hearing was held on 9 March 1994; the court had to adjourn it again due to new documents submitted at the hearing; 4) on 4 May 1994 the Budapest Regional Court appointed a technical expert from the Institute of Forensic Technical Expertise. On 28 September 1994 the court specified the questions to be answered by the expert and it fixed 60 days from the delivery of its decision for the presentation of the expert opinion. On 27 October 1994 the Institute indicated to the court that owing to lack of competence it was not able to present the expert opinion.", "Therefore, on 7 November, the Budapest Regional Court appointed another expert, who presented his opinion on 17 December 1994; 5) at the hearing of 26 January 1996 the plaintiff requested the court to transfer the case to the Prosecutor’s Office concerning his allegations of abuses by the defendants. The court adjourned the hearing, transferred the case-file to the Prosecutor’s Office (which found that the documents did not contain anything in particular which might call for the institution of criminal proceedings) and, after receiving the file back, fixed the date of the next hearing; 6) on 20 November 1997 the plaintiff again extended his claims. In consideration of the above, I disagree that “at least two periods of unexplained delay are apparent in this case: between 28 April 1993 and 1 March 1995, and 20 November 1996 and 6 June 1997 - periods amounting to some 28 months altogether - the Regional Court’s activity being mostly limited to obtaining expert opinions” (§ 37 of the judgment). Even if the proceedings could have been dealt with faster at times, I believe that these delays did not exceed a reasonable time and that the length of the proceedings was mostly due to the plaintiff’s conduct. For all these reasons, I conclude that the length of the proceedings did not exceed the “reasonable time” requirement and that the applicant’s rights under Article 6 § 1 of the Convention have not been violated." ]

[ "FIRST SECTION CASE OF EMMER-REISSIG v. AUSTRIA (Application no. 11032/04) JUDGMENT STRASBOURG 10 May 2007 FINAL 10/08/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Emmer-Reissig v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 5 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 11032/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Herwig C. Emmer-Reissig (“the applicant”), on 11 March 2004. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador Mr F. Trauttmannsdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.", "3. The applicant alleged, in particular, that the Administrative Court failed to hold an oral hearing, which was in breach of Article 6. 4. On 30 November 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1921 and lives in Klosterneuburg. 6. He is a lawyer practising in Klosterneuburg and the owner of a parcel of land in the municipality of Königstetten, which is designated as “forest” land in the zoning plan. On parts of this parcel – approximately 1,500 square meters – he runs an organic farm on a part-time basis, breeding sheep and goats.", "Besides that, he keeps bees and grows herbs. 7. On 18 August 1998 the applicant applied to the mayor of Königstetten for a building permit for a shed, to be used as a shelter for sheep and goats in summer and beehives in winter. It is also designed as a refuge for farm workers. He therefore submitted construction plans for the planned shed and a map of the land in question.", "8. The mayor rejected the applicant's request on 16 February 2000. Relying on a report by an agricultural expert at the Lower Austria Regional Government, he stated that, in view of its shape, size and design, it would not qualify as a farm building and that even if it was an agricultural construction, it could not be erected on the land in question, as the latter had been designated as forest and grassland. 9. The applicant lodged an appeal with the municipality of Königstetten on 10 April 2000.", "On 3 July 2000 the municipality dismissed his appeal on the same grounds. 10. Subsequently, on 13 September 2000, the applicant filed an objection (Vorstellung) with the Lower Austria Regional Government and requested it to hear representatives of the District Farmer's Association (DFA, Bezirksbauernkammer) and the Austrian beekeeper association (ABA, Österreichischer Imkerbund) as experts who would prove that the building he intended to erect was necessary for the intended agricultural enterprise. 11. The Regional Government quashed the municipality's decision on 10 January 2001 and referred the case back to the municipal council.", "It stated that the municipality had failed to address all the points of appeal. 12. The applicant lodged further grounds in support of his appeal on 19 March, 4 and 24 April 2001. In addition to his comments on the decision of 3 July 2000, he filed requests for the taking of evidence. He also submitted a statement by the Tulln Administrative District Authority and a document he referred to as a business plan.", "13. On 23 November 2001 the Königstetten Municipality requested the applicant to comment on an expert opinion it had obtained from the Planning Office at the Lower Austria Regional Government (Gebiets-bauamt) on 31 October 2001. It stated that by far the largest part of the land was covered by forest, which would impede serious agricultural activities. With reference to the earlier decisions, it repeated that, judging by its design and shape, the building at issue would be untypical of an agricultural shed and that the applicant could be assumed never to have intended to carry on agricultural activities, but rather to use it for different purposes. 14.", "The applicant commented on the expert opinion on 10 December 2001. Claiming that the authorities had incorrectly established the relevant facts, he contended that the expert opinion was in breach of Austrian law and European Community law. Besides that, the applicant repeated his request to obtain opinions from the DFA, the ABA and a certain organic farming association (Biobauernverband Ernte) in order to prove the feasibility of the business plan and its compliance with the relevant legal criteria. He also filed an application for an on-site inspection of the land at issue. 15.", "On 29 January 2002 the municipal council also rejected the applicant's appeal. It held that the planned construction would conflict with the zoning plan and that the building would not resemble a shed for agricultural use. 16. The applicant filed an objection (Vorstellung) with the Lower Austria Regional Government again on 11 February 2002, submitting that the municipality had relied solely on an incorrect expert opinion without carrying out investigations of its own. In addition, he claimed that the decision was in breach of European Community law.", "17. Subsequently, on 12 March 2002, the applicant lodged a complaint with the Administrative Court and requested an oral hearing. 18. On 30 July 2002, without holding an oral hearing, the Administrative Court rejected the complaint as inadmissible for non-exhaustion of administrative remedies, as the applicant had failed to file an objection against the decision of 29 January 2002. 19.", "The applicant's objection of 12 March 2002 was dismissed by the Lower Austria Regional Government on 22 July 2002. 20. The applicant lodged a further complaint with the Administrative Court on 22 August 2002 and repeated his request for an oral hearing. 21. On 16 September 2003 the Administrative Court dismissed the applicant's complaint and rejected his request for an oral hearing.", "It found that, despite its request for a detailed business plan, the applicant had failed to provide one. Accordingly, the alleged need for a shed for the so-called agricultural enterprise had not been made out. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE LACK OF AN ORAL HEARING BEFORE THE ADMINISTRATIVE COURT 22. The applicant complained under Article 6 § 1 of the Convention about the Administrative Court's refusal to hold an oral hearing.", "A. Admissibility 23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 24. The applicant submitted that the Administrative Court had unlawfully dismissed his request to hold an oral hearing, thereby depriving him of the opportunity to discuss the expert opinions in the context of a public hearing. Since an oral hearing could have elucidated the facts of the case, the Court's refusal to hold one was in breach of Article 6 of the Convention. 25. The Government, referring to the Court's case-law, argued that under exceptional circumstances the domestic courts, for reasons of efficiency, could refrain from holding a public and oral hearing where only questions of law or highly-technical questions were to be determined or where questions of fact or law raised by the applicant did not require such a hearing.", "Since both the facts and the question of law had been determined in the light of the Administrative Court's constant case-law, it could abstain from holding a public hearing, thus avoiding further procedural delays. Furthermore, the applicant had failed to indicate why he considered a public hearing necessary. 26. The Court notes that the applicant's case was heard by the mayor, the municipal council and the Regional Government, that is, purely administrative authorities, and then by the Administrative Court, which dismissed the applicant's complaint. Although the applicant argued that the Administrative Court did not qualify as a tribunal, there is no indication in the file that the Administrative Court's scope of review was insufficient in the circumstances of the case (see, for instance, Fischer v. Austria, judgment of 26 April 1995, Series A no.", "312, pp. 17-18, §§ 30-34, with further references). Thus, the Administrative Court was the first and only tribunal which examined the applicant's case. 27. As the Austrian reservation in respect of Article 6 § 1 concerning the requirement that hearings be public has been found to be invalid (see Eisenstecken v. Austria, no.", "29477/95, § 29, ECHR 2000-X), the applicant was in principle entitled to a public hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing (see, for instance, Stojakovic v. Austria, no. 30003/02, § 53, 9 November 2006, with further references). 28. The Court has accepted such exceptional circumstances in cases where the proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, pp.", "19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Speil v. Austria (dec.) no. 42057/98, 5 September 2002). In particular, the Court has had regard to the rather technical nature of disputes over benefits under social-security schemes and has repeatedly held that in this sphere the national authorities, having regard to the demands of efficiency and economy, could abstain from holding a hearing if the case could be adequately resolved on the basis of the case file and the parties' written observations (see, among other authorities, Döry v. Sweden, no. 28394/95, 12 November 2002, and Pitkänen v. Sweden (dec.), no.", "52793/99, 26 August 2003). 29. Turning to the circumstances of the present case, the Court notes that the dispute, as presented by the applicant to the Administrative Court, concerned the issue whether the plot of land in question could be used as an agricultural estate. 30. The Court cannot find that the subject matter of the dispute was of such a nature – namely, highly technical or exclusively legal – as to dispense the national authorities from their obligation to hold a hearing.", "31. There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 32. The applicant further complained about the authorities' refusal to hear evidence from certain experts on agriculture and organic farming.", "33. The Court notes that this complaint is closely linked to the complaint examined above. It must therefore be declared admissible as well. However, in view of its findings in paragraph 31 above the Court does not find it necessary to examine these complaints separately under Article 6 § 1 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. 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.” 35. The applicant did not submit any claim for just satisfaction. Accordingly, the Court considers it unnecessary to award him a sum under that head. FOR THESE REASONS, THE COURT 1.", "Declares unanimously the application admissible; 2. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention as regards the lack of an oral hearing before the Administrative Court; 3. Holds by four votes against three that it is unnecessary to examine the applicant's further complaint under Article 6 § 1 of the Convention. Done in English, and notified in writing on 10 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following is annexed to this judgment: - dissenting opinion of Mr Loucaides joined by Mr. Spielmann, and Mr. Malinverni.", "C.L.R.S.N. DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGES SPIELMAN AND MALINVERNI I am unable to agree with the view of the majority according to which having found a violation of Article 6 § 1of the Convention because of the lack of an oral hearing before the Administrative Court it is unnecessary to examine the applicant's further complaint under the same Article about unfairness of the proceedings in this case. This additional complaint, relates, in my view, to a separate and autonomous breach which if it is established needs a different remedy than the one relating to the oral hearing. And, conversely, if the oral hearing breach is remedied that does not automatically give a solution to the other complaint.The two complaints being completely unconnected a separate examination of them was necessary." ]

[ "THIRD SECTION CASE OF DORAN v. IRELAND (Application no. 50389/99) JUDGMENT STRASBOURG 31 July 2003 FINAL 31/10/2003 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Terence and Maureen Doran v. Ireland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of MrG. Ress, President,MrI.", "Cabral Barreto,MrL. Caflisch,MrP. Kūris,MrB. Zupančič,MrJ. Hedigan,MrK.", "Traja, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 28 February 2002 and 8 July 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 50389/99) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Irish nationals, Terence and Maureen Doran (“the first and second applicants”), on 21 May 1999. 2. The Irish Government (“the Government”) were represented by their Agent, Dr A. Connolly and, subsequently, by Ms D. McQuade, of the Department of Foreign Affairs.", "3. The applicants mainly complained under Articles 6 and 13 of the Convention about the length of civil proceedings issued by them and about the lack of an effective domestic remedy in that respect. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "5. By decision dated 30 March 2000 the Court found certain complaints inadmissible. 6. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).", "7. By decision dated 28 February 2002 the Court declared the applicants' complaints concerning the length of the proceedings and an effective remedy in that respect admissible and found their remaining complaints inadmissible. 8. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine) and observations on the merits were not submitted by the parties. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 9. The applicants are Irish citizens, born in 1958 and 1957, respectively, and they both live in County Wicklow, Ireland. 10. On 12 September 1990 they agreed to buy a site with planning permission from “the vendors” on which they intended to build a house. The sale was completed in October 1990.", "It subsequently emerged that, because of discrepancies in the relevant site maps on which they relied during the sale, they did not have access to the site from the road. They were obliged to discontinue building and to sell the site. 11. On 31 May 1991 the Minister for Agriculture and Food established the Tribunal of Enquiry into the Beef Processing Industry (“Beef Tribunal”) and nominated the President of the High Court to be the sole member of the Tribunal. While conducting the Beef Tribunal, the President continued, when possible, to sit in cases in the High Court.", "12. On 17 July 1991 the applicants instituted High Court proceedings for negligence, negligent misstatement, breach of contract, misrepresentation and breach of warranty against their own solicitors (“the applicants' solicitors”), the vendors and “the vendors' solicitors”. On 10 March 1992 the High Court ordered discovery on a consent basis. Pursuant to the applicants' motion and the defendants' consent, on 4 May 1992 the High Court ordered the defendants to file their defence within 4 weeks. Further motions of the applicants were struck out on 22 and 24 June and on 19 October 1992.", "On 18 May 1993 the case was certified ready for hearing by the applicants' senior counsel. 13. The case was originally listed for hearing on 8 July 1993 but it was adjourned (the applicants objected) due to the illness of one of the defendants to 15 July 1993 when another hearing date would be fixed. On 15 July 1993 a hearing date was fixed for 6 October 1993. On that date there was no judge available and the matter was heard on 7 October 1993 when the President of the High Court (“the trial judge”) made himself available.", "The Government maintained that the trial judge was advised by counsel present that the hearing required two days, that the judge had notified the parties that his tribunal commitments meant that he had only two days for their case so that, if the case took longer, he would be obliged to adjourn until after the Beef Tribunal, that he would only deal with issues of liability and that the applicants agreed to this. The applicants denied that their counsel so advised the trial judge, that the trial judge had informed them that the trial would be so adjourned, that their counsel would have agreed to an indefinite adjournment (given the second applicant's psychological state) or that they agreed to the separation of issues of liability and damages. 14. The applicants' case was heard on 7 and 8 October 1993 and, since it was unfinished, the trial judge adjourned it. On 2 November 1993 and 8 February 1994 the applicants wrote to the Chief Registrar of the High Court asking for enquiries to be made as to when the action would be resumed.", "On 16 March 1994 they wrote to the Registrar asking him to intervene with the trial judge to fix a date and enclosing a medical report of the second applicant's doctor dated 12 March 1994 (see paragraph 32 below). The Registrar was also contacted by telephone on numerous occasions by the applicants regarding a hearing date. In March 1994 the Registrar informed the applicants by telephone that the trial judge had confirmed a hearing date in July 1994. A letter to the Registrar of 9 June 1994 requested that a hearing date be fixed. 15.", "During this period, the applicants wrote also wrote to, inter alia, numerous members of Dáil Eireann (the House of Representatives) including to the Minister for Justice. The Deputy Chair of Dáil Eireann indicated, in a letter dated 25 March 1994, that he had contacted the Acting President of the High Court asking the latter to intercede on the applicants' behalf. On 7 April 1994 the Acting President responded that the case would be taken in July 1994. 16. On 29 July 1994 the trial judge completed his report on the Beef Tribunal.", "On 19 September 1994 he was appointed Chief Justice of the Supreme Court. The trial judge resumed the hearing of the applicants' case on 5 October 1994. He heard the last two witnesses and requested legal argument in writing. He reserved judgment, indicating that he would deliver it approximately one week after receipt of the written submissions. Those submissions were made by the end of October 1994 17.", "On 29 November 1994, 2 February, 12 April and 22 May 1995 the applicants wrote to certain Registrars of the High Court requesting information as to when the judgment would be delivered. A response, dated 26 May 1995, stated that the trial judge could not confirm when he could deliver his judgment given his heavy commitments. Further to the applicants' letter, the Minister for Justice indicated in a letter of 10 July 1995 that, while she could not intervene, she had brought the matter to the attention of a Registrar of the High Court. The applicants also wrote to a Registrar on 12 July 1995 again requesting an early delivery date. A Registrar's letter of 13 July 1995 indicated a delivery date before the end of the month.", "By letter dated 25 July 1995 the Minister for Justice responded to a further letter from the applicants indicating that she had forwarded a copy of the applicants' correspondence to the trial judge. Further to another letter from the applicants, a Registrar subsequently confirmed delivery of the judgment on 12 September 1995. 18. Judgment was orally delivered on that date. Both the vendors and the applicants' solicitors were found liable in damages and the claim against the vendors' solicitors was dismissed.", "On 21 September 1995 the Court made various orders concerning damages (adjournment of the assessment of damages) and costs to be paid by the unsuccessful parties. Pending finalisation by the trial judge of the written judgment, the form of order was not to be perfected in order to allow the applicants time to consider the text of that judgment prior to the expiration of the time-limit for appealing any orders of the High Court. The applicants wrote two letters to a Registrar of the High Court (dated 6 and 13 October 1995) and the text of the judgment became available in mid-October 1995. The order of the High Court was perfected on 17 October 1995 and on 3 November 1995 the applicants appealed the findings in favour of the vendors' solicitors to the Supreme Court. The vendors also appealed the High Court findings against them.", "19. Since a stenographer had not been present during the High Court hearings, it was necessary to prepare and agree a record of the evidence given during those hearings for the purposes of the appeal. By 9 February 1996 the applicants had completed a substantial note of evidence and on 29 March 1996 they submitted it to the vendors and to the vendors' solicitors for their agreement. On 17 July 1996 the applicants issued two motions. The first sought the comments of the vendors' solicitors on the note of evidence and the second requested that the vendors' appeal be struck out for “want of prosecution” since the vendors had not filed documents in their appeal.", "20. On 26 July 1996 the Supreme Court heard both motions with the trial judge (then Chief Justice) presiding. The court requested the vendors and the vendors' solicitors to submit their comments on the note of evidence within two weeks, in default of which the trial judge would finalise the note. On the second motion, the vendors were given until 7 October 1996 to file the relevant appeal documents, in default of which the Supreme Court envisaged striking out the vendors' appeal. Both motions were adjourned until 11 October 1996.", "The vendors' appeal and the related motion were later dropped. 21. Following further letters from the applicants in August 1996, on 17 September 1996 the vendors' solicitors indicated that they disagreed with 16 items in the note of evidence. On 11 October 1996 the applicants' motion concerning the note of evidence was adjourned to 18 October 1996. Three days later the vendors' solicitors confirmed that agreement would not be reached on the note.", "On 18 October 1996 three judges of the Supreme Court (not including the trial judge) directed the trial judge to settle the note of evidence. On 24 October 1996 the applicants submitted the note of evidence together with a note of the 16 disputed points to the trial judge. 22. In or around November 1996 the President of the High Court gave directions that all complaints about delays in proceedings should be forwarded to him. A memorandum of the President of the High Court published in the Bar Review of January/February 1997 noted the delays in delivering reserved judgments due to the shortage of judges and requested legal practitioners formally to notify the President of the High Court of their concerns about such delays.", "23. Subsequently, the applicants wrote to a Registrar of the High Court on a number of occasions (including on 14 January, 12 March and 25 June 1997) requesting the early settlement of the note of evidence. On 8 July 1997 the applicants wrote to the President of the High Court requesting him to intervene given the delay in their proceedings. In July 1997 a Registrar of the High Court indicated orally that the trial judge would deal with the matter after 20 August 1997. The applicants sent a further reminder to that Registrar on 18 September 1997.", "On 10 October 1997 the Department of Justice, Equality and Law Reform (“the Department of Justice”) requested the Chief Registrar's comments on the alleged undue delay in the case. On 16 October 1997 a Registrar indicated to the Department of Justice that the note of evidence matter would be resolved in one week. 24. By letter dated 22 October 1997 the trial judge forwarded a report (six pages) he had prepared on the evidence and on the points disputed by the relevant parties and he apologised to the applicants for the delay. By letter dated 24 October 1997 a Registrar assured the Department of Justice that the note of evidence matter had been resolved and that an early date for a hearing of the appeal would be made available.", "25. Further to the applicants' complaints to their member of Dáil Eireann and to the Tánaiste (the deputy Prime Minister), the Attorney General expressed, by letter dated 30 October 1997 to the applicants, his concern at the delay in their case. While he was constitutionally obliged not to interfere in judicial matters, he had mentioned the matter informally to the trial judge and the latter assured him that all outstanding matters had been dealt with. In a letter dated 4 November 1997 the Attorney General confirmed to the Tánaiste that he was concerned about the delays which the applicants had experienced in their case and that he had raised these matters in a private and informal manner with the trial judge who had assured him that all outstanding matters had been dealt with. Following an invitation, the applicants met with a member of the Attorney General's Office in late November 1997, although the advice was that that office could not interfere in judicial processes.", "26. By motion dated 9 December 1997 the applicants amended their appeal. By letter dated 21 January 1998 the Minister for Justice responded to queries of the Taoiseach (Prime Minister) concerning the applicant's case pointing out that on 21 November 1997 the appeal hearing had been fixed for 2 February 1998. 27. The Supreme Court delivered its reserved judgment on the applicants' appeal on 9 March 1998 and found in the applicants' favour, considering that the vendors' solicitors were also liable in negligence to the applicants.", "28. The case was remitted to the High Court for the assessment and apportionment of damages. By letter dated 7 May 1998 the Attorney General responded to queries raised by the applicants' member of Dáil Eireann: he indicated that their case was “concerning” and that it was hoped that the recently established system for monitoring judicial delays would ensure that their experience would not be repeated. 29. The vendors' solicitors filed an amended defence in May 1998 and the applicants filed further particulars of damage in June 1998.", "On 26 June 1998 the vendors' solicitors made a late lodgement into court in the sum of 85,000 Irish pounds (IR£). The applicants objected. A letter dated 13 July 1998 from the Attorney General's office to the applicants explained that his previous intervention related to an administrative act by the trial judge (the note of evidence) but that the outstanding matters were judicial in which he could not interfere. By letter dated 22 July 1998 the Attorney General's office confirmed that it had been informed that a hearing date had been fixed by the High Court for 13 October 1998. A letter dated 6 August 1998 from the Taoiseach's office to the applicants confirmed that increased resources to the courts meant that it was hoped that their experiences would not be repeated.", "On 9 October 1998 the applicants also met with the Tánaiste to discuss the length of their ongoing proceedings. 30. On 13-16 October 1998 an assessment hearing took place in the High Court. On 25 November 1998 the High Court awarded the applicants approximately IR£200,000 in respect of pecuniary loss and IR£10,000 in respect of non-pecuniary damage (the High Court finding that both applicants had been put through “a high degree of anxiety and upset” as a consequence of the defendants' negligence). The applicants were also awarded their costs when taxed and ascertained.", "On 11 December 1998 the High Court dealt with matters concerning the attribution of liability between the defendants. The order of the High Court was perfected in early February 1999. There was no appeal on these matters to the Supreme Court. 31. The Taxing Master abridged the time for service of the applicants' bill of costs (Order 99, Rule 28(1) of the Rules of the Superior Courts) and fixed a hearing for 29 July 1999.", "The bill of costs contained 519 items and comprised 172 pages. This hearing was then adjourned on the application of the vendors' solicitors until 20 October 1999. The hearing took place on that date and, since it did not finish, it was adjourned to and continued on 20 November 1999. It was again adjourned and concluded on 22 November 1999, when the Taxing Master delivered his reserved ruling. The Certificate on Taxation (approximately IR£300,000) was signed by the Taxing Master on 15 December 1999.", "32. The applicants submitted a number of medical certificates to the Court. A certificate prepared by the second applicant's doctor on 26 May 1993 attested to her severe symptoms of anxiety since the legal problems had arisen. She had required repeated courses of medication and she was, at that stage, depressed and on medication. Her anxiety symptoms were likely to continue until the legal situation was resolved.", "The same doctor confirmed, in a certificate dated 12 March 1994, a deterioration of the second applicant's condition into “frank depression”. Medication had initially helped but the delay in the proceedings was worsening her condition. A psychiatric report on the second applicant dated July 1998 recorded her significant clinical depression since the start of the proceedings which warranted anti-depressants and tranquillisers on many occasions. It was considered that the proceedings continually threatened to bring about a relapse, in spite of certain periods of recovery following appropriate treatment. It was also considered that a full recovery was foreseeable only after the proceedings terminated.", "A psychiatric report on the first applicant dated August 1998 attested to the great strain the proceedings had caused him. II. RELEVANT DOMESTIC LAW AND PRACTICE 33. Article 40(3)(1) of the Constitution provide: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. “ Certain of the personal rights of the citizen are explicitly guaranteed by provisions of the Constitution.", "In addition, in interpreting and applying Article 40(3)(1) of the Constitution, the Irish courts have identified other “unenumerated” rights protected by virtue of that Article. These include the principle of “constitutional justice” (inter alia, no one should be a judge in their own cause (nemo iudex in sua causa), anyone who may be adversely affected by a decision should be afforded the opportunity to put their side of the case (audi alteram partem) and the right to fair procedures). The other relevant unenumerated right derived from Article 40(3)(1) is the right to litigate or the right of access to court. 34. Order 60 of the Rules of the Superior Courts provides as follows: “1.", "If any question as to the validity of any law, having regard to the provisions of the Constitution, shall arise in any action or matter the party having carriage of the proceedings shall forthwith serve notice upon the Attorney General, if he is not already a party. 2. If any question as to the interpretation of the Constitution, other than a question referred to in rule 1, shall arise in any action or matter, the party having carriage of the proceedings shall, if the Court so directs, serve notice upon the Attorney General. 3. Such notice shall state concisely the nature of the proceedings in which the question or dispute arises and the contention or respective contentions of the party or parties to the proceedings.", "4. The Attorney General shall thereupon be entitled to appear in the act ion or matter and become a party thereto as regards the question which arises.” 35. Order 123 of the Rules of the Superior Courts provides, in so far as relevant, as follows: “1. At the trial or hearing of any cause or matter with oral evidence, any party may apply to the Judge for an order that the proceedings be reported by a shorthand writer and thereupon the Judge shall appoint a shorthand writer. ... 3.", "The party applying for an order under rule 1 ... shall pay the remuneration of the shorthand writer and said payment shall be borne by said party unless the Judge or the Master (as the case may be) shall after the trial or hearing certify that in his opinion it was expedient that the proceedings or any part thereof should have been so reported. If such certificate is given the remuneration of the shorthand writer for reporting the proceedings or part thereof to which the certificate relates shall be part of the costs in the cause. 4. The Judge shall have power, during the course or at the conclusion of the trial or hearing, to direct that copies of the shorthand writer's transcript of the evidence or any part thereof be furnished to him at the public expense or be furnished to any party applying therefor at the expense of that party.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 36.", "According to the applicants, the length of the proceedings constituted a breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government rejected the allegation. Article 6 § 1, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. The parties' submissions 1. The Government 37.", "The Government maintained that the proceedings were complex involving as they did the liability of the vendors, the vendors' solicitors and of the applicants' solicitors and concerning, inter alia, a novel issue as to the duty of care owed by the solicitor for a vendor to a legally represented purchaser. 38. They also contended that the applicants were responsible for the delay in the proceedings. The Government maintained that, in October 1993, the applicants had agreed that the trial judge would hear their case despite his Tribunal commitments and even though that hearing would involve only issues of liability. On 5 October 1994 they failed to object to the order to make additional written submissions.", "Their appeal to the Supreme Court on liability led to the postponement of the assessment of damages. It was “essentially the responsibility” of the applicants to provide a transcript for the purposes of their appeal to the Supreme Court and they should have been more prudent and engaged a stenographer: their failure to do this led to the necessity for the parties to agree the note of evidence and no agreement was ever reached. The trial judge subsequently produced a comprehensive note of evidence in October 1997 which was followed quickly by the Supreme Court's hearing on the appeal. 39. As to the conduct of the authorities, the Government pointed to the trial judge's Tribunal commitments, indicated that any delay in delivering the written judgment until October 1995 was explained by the fact that it had been orally delivered during court vacation time and by the need to perfect the text.", "In any event, the Government suggested that the applicants could have arranged for a note or other record to be taken of the oral delivery of the judgment A stay had to be granted in September 1995 pending any appeals. The Government further maintained that there had been no delay in the taxation of the applicants' costs. 2. The applicants 40. The applicants did not accept that the complexity of the case was responsible for the length of the proceedings.", "41. They strongly disputed the Government's suggestion that they were responsible for any delay. They argued that, on the contrary, they were more than diligent in attempting to ensure the timely hearing of their case. They disputed the Government's suggestion that they had agreed certain matters with the trial judge in October 1993 (see paragraph 14 above), they had trusted the trial court that additional written submissions were required and it was plain to the applicants that the assessment of damages could not proceed until the liability of all defendants (including the vendors' solicitors) had been definitively established by the Supreme Court (and, in the end, their appeal to the Supreme Court was successful). They believed that it was the defendants' responsibility to ensure the presence of a stenographer and, in any event, the finalising of the note of evidence thereafter by the trial judge was unacceptably long.", "42. As to the conduct of the authorities, the applicants maintained that the courts inadequately responded to their attempts to speed up the proceedings, facilitated the delaying tactics of the defence and were themselves the source of significant delay. They noted that the courts and authorities were fully aware of and acknowledged the delay, but took no steps to remedy the problem despite the applicants numerous and continuous requests. In particular, they pointed to the delay in fixing a first hearing date, the delay between the beginning of the High Court hearing and its completion, the trial judge's delay in finalising the note of evidence and the lapse of time between the referral of the case to the High Court for an assessment of damages and the final judgment on damages. The applicants agreed that they did not find that the taxation of costs' element of the proceedings was responsible for the delay.", "B. The Court's assessment 43. The proceedings issued by the applicants began on 17 July 1991 and ended on 15 December 1999 with the signature of the taxation certificate by the Taxing Master of the High Court (Robins v. the United Kingdom judgment of 23 September 1997, Reports of Judgments and Decisions 1997-V, §§ 28-29). They therefore lasted 8 years and 5 months approximately. The proceedings were not before a significant number of instances, the Court observing that the High Court was seized as a court of first instance on the liability issue and, later, on the assessment and apportionment of damages with the Supreme Court examining the applicants' appeal on one liability matter.", "44. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicants and of the relevant authorities, and the importance of what was at stake for the applicants in the litigation (see, for example, Comingersoll v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV). 45. The Court notes that the proceedings concerned, inter alia, allegations of negligence and misrepresentation against two firms of solicitors and the vendors of the relevant property.", "It considers that the case was not significantly complex from an administrative or factual point of view. While the proceedings may have established a novel duty of care by a vendor's solicitor to a legally represented purchaser, the Court does not find that any such legal novelty can explain the length of the applicants' proceedings. 46. As to the conduct of the applicants, the Court does not accept the Government's suggestion that their conduct accounts for the delay in their proceedings. In particular, the adjournment of the High Court hearing (from July to October 1993) was due to the illness of one of the defendants.", "Even assuming that the applicants accepted on 7 October 1993 that the judge chairing the Beef Tribunal hear their case in the circumstances suggested by the Government (which the applicants firmly contested – see paragraph 13 above), no other High Court judge was, in any event, free to hear the case in October 1993 and the Government did not indicate when another would have been available. Once the case had begun with one judge, efficiency and logic dictated that it remain with him and, in any event, the trial judge had completed his report on the Beef Tribunal by July 1994. Even if the applicants did not object to the order of 5 October 1994 allowing further written submissions, those submissions had been made by the end of that same month. As to the adjournment of the damages' assessment until after the applicants' appeal to the Supreme Court, the Court observes that applicants were entitled to appeal, they were in fact successful and it would have been irrational to assess and apportion damages to be paid by the defendants before the liability of each had been established. As to the presence of a stenographer at trial, the Court observes that the applicants would have been required to decide prior to knowing the result of the first instance hearing whether to risk the not insignificant costs of a stenographer for the purposes of any appeal (see Order 123, Rule 3 of the Rules of the Superior Courts).", "It is further noted that the Government did not claim that seeking agreement of the parties on a note of the evidence, when the nature and ambit of the appeal was clearer, was a novel manner of proceeding. Furthermore, the applicants had completed a substantial note of the evidence by February 1996 and subsequently carefully pursued the vendors' solicitors agreement through letters and an application to court (see paragraphs 19-21 above). They responded within two weeks to the 16 points of disagreement then submitted by the vendors' solicitors. Once the Supreme Court directed the trial judge to settle the note of evidence, they vigorously pursued the trial judge's settlement of the note (see paragraphs 21-24 above). The Court has also had regard to the applicants' timely completion of their submissions and their numerous motions to the court to ensure the defendants' adherence to their procedural obligations.", "They were also tenacious in their pursuit of informal means of speeding up their proceedings, which steps resulted in the informal intercession on the applicants behalf by, inter alia, the Taoiseach, the Tánaiste, the Attorney General and the Department of Justice, such authorities on certain occasions acknowledging the unacceptability of the delay in the applicants proceedings (see, for example, paragraphs 23, 25 and 29 above). The Court finds that the applicants diligently pursued the timely resolution of the proceedings issued by them. 47. As to the conduct of the competent authorities, the Court recalls that, whether or not a system allows a party to apply to expedite proceedings, the courts are not exempted from ensuring that the reasonable time requirement of Article 6 is complied with, as the duty to administer justice expeditiously is incumbent in the first place on the relevant authorities (Philis v. Greece (no. 2), judgment of 27 June 1997, Reports 1997-IV, § 49).", "The Court notes that one year (from 8 October 1993 to 5 October 1994) elapsed between the beginning and end of the hearing at first instance. In addition, there was a further delay of almost one year between the end of the hearing and the delivery of judgment at first instance (from 5 October 1994 to 12 September 1995). Although the trial judge had commitments to the Beef Tribunal, he had completed his report for that tribunal by July 1994 and, in any event, it is for the State to organise its legal system as to ensure the reasonably timely determination of legal proceedings (see, for example, Salesi v. Italy, judgment of 26 February 1993, Series A no. 257-E, § 24). Furthermore, almost a further year passed between the date when the Supreme Court directed the trial judge to settle the note of evidence and his finalising a six-page report on that note (from 24 October 1996 to 22 October 1997).", "The trial judge apologised to the applicants for this delay. The Court considers that these periods of delay, amounting to approximately three years, were attributable to the authorities. Moreover, the Court observes that, when the Supreme Court gave judgment on the applicants' appeal in March 1998, the proceedings had already been in being for over six and a half years, which period included the above-described delays attributable to the authorities. In such circumstances, the Court considers particular diligence was required of the judicial authorities subsequently concerned with the proceedings to ensure the speedy determination of the outstanding issues namely, the assessment and apportionment of damages by the High Court and the applicants' costs. However, the assessment and attribution of damages was not completed by the High Court until nine months later (December 1998), with a further year elapsing before the costs' aspect of the case was finalised.", "The Court considers that the above-described delays attributable to the competent authorities are not justified by the submissions of the Government. 48. Accordingly, and having regard to what was at stake for the applicants (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296‑A, § 61), the Court concludes that the applicants' proceedings were not determined within a reasonable period of time as required by Article 6 § 1 of the Convention and that there has therefore been a violation of that provision. II.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 49. The applicants also maintained, invoking Article 13 of the Convention, that they had no effective remedy as regards the length of their proceedings. This Article reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties' submissions 1. The Government 50.", "The Government maintained that the applicants did have an effective domestic remedy. They submitted that it had been open to them to contend that they had a right to a decision within a reasonable time on two constitutional grounds drawn from the unenumerated rights guaranteed by Article 40(3)(1) of the Constitution. Such grounds could have been invoked by the applicants at any stage of the proceedings (The State (Shatter, Gallagher & Co.) v. de Valera (No. 2) [1987] IR 55, at 59-60). While the Constitution and other law did not prescribe any particular remedy for the infringement of an individual's constitutional rights, the appropriate remedy would depend on the facts of a particular case and “may” include an award of damages against the State (Healy v. Minister for Defence, High Court, 7 July 1994, at p. 10, and Kennedy v. Ireland [1987] IR 587, at 593).", "51. The first constitutional ground which the applicants could have invoked was the principle of “constitutional justice”. The Government submitted that the courts have recognised that the unenumerated rights guaranteed by Article 40(3)(1) of the Constitution include principles of constitutional justice and that the latter includes various procedural guarantees including a right to a reasonably prompt decision. In this respect, the Government cited a number of domestic cases (In Re Haughey [1971] IR 217; Garvey v. Ireland [1981] IR 75; O'Keefe v. Commissioners of Public Works, Supreme Court, 24 March 1980; The State (McFadden) v. Governor of Mountjoy Prison (No. 1) [1981] ILRM 113; Cannon v. Minister for the Marine [1991] 1 IR 82; Twomey v. Minister for Tourism and Transport, Supreme Court, 12 February 1993; Bosphorous Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Minister for Transport (No.", "2) [1997] 2 IR 1; In Re Gallagher (No. 2) [1996] 3 IR 10; and McNeill v. Garda Commissioner [1997] 1 IR 469). The Government submitted that constitutional justice had successfully been invoked to augment the specialised code of procedural and evidential law regulating judicial function where the passage of time could have resulted in injustice (O'Domhaill v. Merrick [1984] IR 151 and Toal v. Duignan (No. 1) [1991] ILRM 135). 52.", "The second constitutional ground which the Government suggested the applicants could have invoked was their constitutional right to litigate or their right of access to court to assert and vindicate legal rights (Macauley v. Minister for Posts and Telegraphs [1966] IR 345, at 357-358). They maintained that the applicants could therefore have argued before the High and Supreme Courts that they had a constitutional right to a decision within a reasonable period of time in order for their right to litigate to be effective, based on the maxim that justice delayed is justice denied and, in particular, they could have argued that their right to litigate extended to the more prompt processing of their case by the courts. They could have requested the courts to give effect to this right or, in default, to award them damages for its infringement. 53. Furthermore, the Government submitted that the domestic courts had a positive duty to protect persons against invasion of their constitutional rights.", "They pointed out that judges take an oath to uphold the Constitution and are therefore under a duty to preserve the individual's constitutional rights. They further argued that the applicants could also have pleaded the judgments of the European Court of Human Rights as persuasive authority in support of their constitutional contentions. 2. The applicants 54. The applicants contended that they were more than diligent in ensuring the speedy conclusion of the proceedings, including issuing numerous motions and otherwise corresponding with the authorities.", "While various branches of the State had consequently recognised the delays in their case, the response of the judiciary was inadequate and it would have been the same judges who would have had to consider any constitutional proceedings suggested by the Government. They also maintained that they could not have been reasonably expected to pursue additional and substantial proceedings before the High and Supreme Courts in order to speed up the proceedings. As to the case-law to which the Government referred, the applicants noted that not one case related to delay attributable to a judge. B. The Court's assessment 55.", "Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI). 56. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v. Turkey [GC], no.", "22277/93, § 97, ECHR 2000-VII). The term “effective” is also considered to mean that the remedy must be adequate and accessible (Paulino Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-...). 57. In addition, particular attention should be paid to, inter alia, the speediness of the remedial action itself, it not being excluded that the adequate nature of the remedy can be undermined by its excessive duration (Tomé Mota v. Portugal (dec.), no.", "32082/96, ECHR 1999‑IX, and Paulino Tomás, cited above). 58. The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees are relevant in determining whether the remedy before it is effective. In addition, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may, in principle, do so (see, among many other authorities, Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no.", "61, § 113, and Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 145). 59. It is further recalled that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13, if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (Kudła, cited above, § 158). In the context of excessive length of proceedings, Article 13 therefore offers an alternative: a remedy will be considered “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (Mifsud v. France (dec.), no. 57220/00, ECHR 2002–VIII).", "60. Finally, it is recalled that, in the case of Mc Mullen v. Ireland ((dec.), no. 42297/98, 4 July 2002), the applicant also complained about the length of civil proceedings instituted by him. The Government argued that he had failed to exhaust domestic remedies as he had not brought an action based on his unenumerated right to litigate and to have access to court. The Court found that the Government had not discharged the onus on them to show that he had available to him an effective domestic remedy in respect of the length of his proceedings.", "61. It remains for the Court to determine whether the means available to the present applicants in Irish law for complaining about the length of their proceedings can be considered “effective” within the meaning of Article 13 of the Convention (which Article has a close affinity with Article 35 § 1 of the Convention – the above-cited Kudła judgment, § 152) in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred. 62. The Court notes that the Government did not claim that there was any specific legal avenue conceived of as a separate remedy whereby an individual could complain about the length of proceedings. Nevertheless, they argued that effective constitutional remedies were available.", "Referring generally to a number of domestic cases, they argued that the applicants could have, at any stage of the proceedings, commenced an action in pursuit of their right to a decision within a reasonable time based on two unenumerated constitutional rights (the principle of constitutional justice and the right to litigate). 63. The Court notes that, of the domestic judgments generally relied upon by the Government, none states that either of the two unenumerated constitutional rights include a right to complain about delay during court proceedings attributable to the judicial authorities. As to the case-law cited in respect of the right to constitutional justice, certain cases concerned the customary legal limitations on plaintiffs commencing proceedings once there has been a substantial lapse of time after the impugned event (the above-cited cases of O'Keefe, O'Domhaill and Toal), delays by Ministers in granting relevant licences and certification (Cannon and Twomey, cited above), a Minister's duty to act with expedition under European law (Bosphorous Hava Yollari Turizm ve Ticaret Anonim Sirketi, also cited above) and the application of general principles of constitutional justice and fair procedures which did not concern delay (the above-cited cases of In Re Haughey, Garvey, The State (McFadden) and In Re Gallagher (No. 2)).", "As regards the right to litigate, the above-cited Macauley judgment relied on by the Government applied the right to have recourse to the High Court to vindicate constitutional rights in a context not concerning delay. 64. However, and even if it could be assumed that a right to a determination of proceedings within a reasonable period of time could be considered to be one of the guarantees flowing from Article 40 (3)(1) of the Constitution (as referred to but not applied in the above-cited McNeill case) and even assuming that such a complaint could be raised at any time (The State (Shatter, Gallagher & Co. v. de Valera cited above), the Court does not consider that it has been demonstrated that the remedy to which the Government referred can be considered to be “effective, adequate or accessible” within the meaning of Article 13 of the Convention for the following reasons. 65. In the first place, the Government did not address the question of how the constitutional action proposed by them could constitute a remedy preventative of future delay.", "The Government relied on the above-cited case of The State (Shatter, Gallagher & Co.) v. de Valera to demonstrate that such a procedure could be commenced during the applicants' substantive proceedings, but that case itself took over a year and a half to complete, a period which the remaining domestic cases cited by the Government demonstrate is relatively quick for the determination of a constitutional action. The requirement that the remedy itself be sufficiently swift is particularly important if the remedy is proposed to be one preventative of future delay (see paragraph 57 above). In addition, neither the Government nor the case-law cited by them clarify whether the applicants could have made these constitutional arguments as part of their substantive proceedings, namely, without issuing separate proceedings. Even if separate proceedings were not necessary, it is not explained whether the applicants would have been obliged to complain about delay before a court to that same court or, if complaining to a different court, how the latter's decision in their favour could in practice be relied upon to speed up substantive proceedings before a different court. 66.", "Secondly, and as to the alternative remedy of an award of damages for delay which had already occurred, the Government accepted that there was no domestic legal provision for an award of damages following a successful constitutional action and limited their submissions to suggesting that damages “may” be available (Kudła, cited above, § 159, and Matthies-Lenzen v. Luxembourg (dec.) no. 45165/99, 14 June 2001). In addition, even if the applicants could have incorporated a constitutional complaint about delay already experienced into their substantive proceedings (although again this is not addressed by the Government), the Government did not clarify the basis for the State's liability to pay damages (O'Reilly v. Ireland (dec.) no. 24196/94, Decisions and Reports (DR), 84-A, p. 72) and how such damages would be calculated or the level of damages which could be expected, the Court noting that the adequacy of a remedy is also determined by reference to this latter factor (Scordino v. Italy (dec.), no. 36813/97, ECHR 2003-...).", "While the Government relied on two cases (the above-cited cases of Kennedy and Healy) as demonstrating the availability of damages following a successful constitutional claim, the Court notes that the proceedings in one case lasted over two years, and substantially longer in the other, before the relevant order for damages: such a lapse of time is not reconcilable with the requirement (see paragraph 57 above) that the remedy must itself be sufficiently swift. 67. Finally, and more generally, the Court observes that the applicants would have been required to join the Attorney General to proceedings in order validly to raise any relevant constitutional arguments (Order 60 Rule 2 of the Rules of the Superior Courts 1986). The Attorney General would have been consequently entitled to appear and make submissions as regards the constitutional questions arising. The Government's submissions concerning the positive obligation on the domestic courts to protect persons against an invasion of their constitutional rights is noted: however, such an obligation applied when the above-established unreasonable delays took place.", "Moreover, while the Government relied on the “persuasive authority” domestically of the judgments of this Court, the Convention has not been incorporated into domestic law and, consistently, no case was cited by the Government where the domestic courts relied on this Court's judgments to recognise a further unenumerated constitutional right and to develop a domestic remedy for its breach. 68. In sum, while there may be some constitutional basis for the recognition of the right to a determination of a civil right within a reasonable period of time, the Government have not referred to one domestic case where any individual complained to a domestic tribunal about delay of the nature at issue in the present case and which resulted in the prevention of excessive delay or its continuation, or in damages for delay which had already occurred. 69. In such circumstances, and since the remedy must be effective both in law and in practice, the Court does not consider that a claim based on the constitutional right to justice and to litigate has been shown to constitute an effective domestic remedy for excessively long proceedings for the purposes of Article 13 of the Convention.", "There has therefore been a violation of this provision. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 71.", "The applicants claimed IR£65,545 in damages for the pecuniary loss suffered as a result of the incorrect assessment of the High Court of damages in their case. They further claimed 100,000 euros (EUR) in non-pecuniary damages, the applicants referring to the suffering and distress caused, particularly to the second applicant, by the excessive delay in the proceedings. The second applicant continues to be vulnerable to depression and to take medication. 72. The Government maintained that the applicants' claims were exorbitant.", "They submitted that the Court should take into account that the delays in the proceedings were not especially excessive and that the nature of proceedings is such that certain delays are inevitable and unavoidable. In addition, they pointed to the level of damages awarded by the High Court to the applicants (IR£202,198.56) which included a claim for general damages of IR£10,000: they argued that the applicants had already been compensated for any losses that may have arisen from the delays of which they complain. They also submitted that the applicants' claim as to the inadequacy of the award of damages by the High Court is not related to the matter at issue in this case namely, the length of their proceedings. 73. As regards the applicants' claims for pecuniary loss based on an allegedly incorrect assessment of damages by the High Court, the Court's case-law establishes that there must be a clear causal connection between the violation of the Convention established and the damage claimed by the applicant (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no.", "285-C, §§ 16-20; Cakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV). The Court has already declared inadmissible the applicants' complaints concerning the assessment of damages by the High Court in this case (see Doran v. Ireland (dec.), no. 50389/99, 30 March 1998 and 28 February 2002). There is therefore no causal connection between the violations of the Convention established in this case and the pecuniary damage claimed.", "No award is accordingly made for pecuniary damage. 74. Turning to non-pecuniary loss, the Court does not accept that the applicants have already been compensated domestically for the Convention violations found. Damages were awarded by the High Court to compensate the pecuniary and non-pecuniary loss of the applicants caused by their former solicitors, the vendors and the vendors' solicitors and arising from the sale of the site. They did not therefore concern the excessive length of the applicants' proceedings or their lack of an effective domestic remedy in that respect.", "75. The Court considers that the applicants must have certainly suffered some non-pecuniary damage, such as distress and frustration resulting from the protracted length of the proceedings and the lack of an effective remedy for this, which cannot sufficiently be compensated by the finding of a violation (see, for example, Mitchell and Holloway v. the United Kingdom, no. 44808/98, § 69, 17 December 2002). In addition, the Court finds it substantiated that the second applicant suffered, as a result of the breaches of the Convention established in this case, some concrete injury to her mental health. Although it is clear that certain symptoms emerged relatively early in the proceedings and can be considered to relate to the problematic purchase of the relevant site and the necessary consequent domestic proceedings, the Court considers that the subsequent medical reports are demonstrative of a significant deterioration in her mental health as a result of the ongoing proceedings and it notes the medical view that a full recovery was foreseeable only once the proceedings terminated.", "In such circumstances, the Court finds that there is a causal connection between the violations established in this case and the duration of the second applicant's mental health problems. The Court has also taken into account the consequent and inevitable additional burden on the second applicant's husband, the first applicant, which is consistent with the medical report submitted in his respect dated August 1998. 76. Accordingly, and taking into account all of the circumstances of the case, in particular the considerable distress of the applicants, and making its assessment on an equitable basis, the Court awards the applicants a total sum of EUR 25,000 under this head. B.", "Costs and expenses 77. The applicants also claimed EUR 1,000 compensation for the costs and expenses of the Convention proceedings in relation to matters such as postage, telephone and stationary, together with EUR 500 in respect of time lost by them in preparing their extensive submissions to the Court. 78. The Government indicated that they had no comments on this claim of the applicants. 79.", "The Court finds that the sum claimed in respect of the actual expenses incurred by the applicants in pursuing their Convention complaint (EUR 1,000) is recoverable and appears reasonable, but that the sum claimed in respect of time spent drafting submissions to the Court cannot be taken into consideration, as the applicants presented their own case (Brincat v. Italy, judgment of 26 November 1992, Series A no. 249‑A, § 29). C. Default interest 80. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 2. Holds that there has been a violation of Article 13 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the sums of EUR 25,000 (twenty-five thousand euros) in respect of their non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of their costs and expenses. (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants' claim for just satisfaction.", "Done in English, and notified in writing on 31 July 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerGeorg RessRegistrarPresident" ]

[ "FIFTH SECTION CASE OF PETERMANN v. GERMANY (Application no. 901/05) JUDGMENT STRASBOURG 25 March 2010 This judgment is final but it may be subject to editorial revision In the case of Petermann v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Karel Jungwiert, President,Renate Jaeger,Mark Villiger, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 2 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 901/05) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Hans Petermann (“the applicant”), on 18 December 2004. 2.", "The applicant was represented by Mr K. Dammann, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice. 3. On 5 February 2009 the President of the Fifth Section decided to give notice of the application to the Government.", "It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol no. 14 governing the power of three judge Committees to rule on cases in which there is a well-established case-law, it was further decided to assign the application to a Committee after consultation of both parties, who did not object. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1947 and lives in Hamburg. A. Background to the case 5. On 30 March 1985 the applicant was attacked in an urban train by one or two men and his right leg and his back were seriously injured. 6.", "By a decision of 24 April 1986, as amended by an acknowledgement (Anerkenntnis) before the Hamburg Social Court on 21 November 1988, the Hamburg Pension Office (Versorgungsamt) granted the applicant a pension under the Victims Compensation Act (Opferentschädigungsgesetz) because of a reduction in his earning capacity of 50 per cent for four months and of 30 per cent for another six months covering the period from 30 March 1985 until 31 January 1986. It found that as of 1 February 1986, the loss of earning capacity amounted to less than 25 per cent, so that no pension was payable. 7. On 21 November 1988 the Hamburg Social Court dismissed the applicant's claim for a higher pension. B.", "The proceedings before the Hamburg Pension Office 8. On 20 March 1990 the applicant, represented by counsel, lodged a request to amend the Pension Office's decision of 24 April 1986. He argued that the damage to his health suffered as a result of the attack on 30 March 1985 had increased following the Hamburg Social Court's judgment of 21 November 1988. He claimed the payment of a pension under the Victims Compensation Act from March 1990 onwards as the loss of his earning capacity now amounted to at least 50 per cent. 9.", "On 26 September 1990 the Hamburg Pension Office, having consulted its surgical expert, refused to amend its decision, arguing that there had not been an essential change in the damage caused by the attack. C. The proceedings before the Hamburg Social Court 10. On 17 October 1990 the applicant brought an action in the Hamburg Social Court against the decision of the Hamburg Pension Office dated 26 September 1990. 11. Between 22 April and 6 June 1991 the statements of three doctors treating the applicant were submitted to the Social Court.", "12. On 25 July 1991 surgical expert K., who had been appointed by the Social Court on 13 June 1991, submitted his report. He found that the applicant's loss of earning capacity since March 1990 for surgical reasons alone was below 25 per cent. 13. On 13 December 1991 Bo., a neurological and psychiatric expert appointed by the court on 9 August 1991, submitted his report.", "He found that the applicant had not suffered any damage to his mental health as a result of the attack in 1985. 14. On 15 April 1992 expert Bo. further commented on his report dated 3 December 1991 at the court's request. 15.", "On 5 January 1993 the Social Court granted the applicant legal aid. 16. On 13 January 1994 Bi., a neurological and psychiatric expert appointed by the court on 23 July 1993, submitted his report. He diagnosed the applicant as suffering from post-traumatic stress caused by the attack in 1985 and estimated the total loss of his earning capacity (including surgical and psychological aspects) at 30 per cent. 17.", "By a statement dated 16 March 1994 a neurological and psychiatric doctor working for the Pension Office contested expert Bi. 's findings. 18. On 26 June 1995 W., a neurological and psychiatric expert appointed by the court on 17 August 1994 at the applicant's request under section 109 of the Social Courts Act (see paragraph 48 below), submitted his report at the court's repeated requests. He found that the applicant had also suffered mental damage due to the constant pain in his right knee and assessed the total loss of his earning capacity (including surgical and psychological aspects) since March 1990 at 30 per cent.", "19. In a statement dated 27 October 1995 a neurological and psychiatric expert working for the Pension Office contested expert W.'s findings. 20. On 15 May 1996 D., an orthopaedic expert appointed by the court on 2 October 1995 at the applicant's request under section 109 of the Social Courts Act, submitted his report. He found that the reduction of the applicant's earning capacity for orthopaedic reasons alone amounted to 30 per cent.", "21. On 28 August 1996 and on 17 December 1996 the applicant requested the court to expedite the proceedings. 22. On 8 January 1997 surgical expert St., and, on 22 January 1997, the neurological and psychiatric expert Br., who were both working for the Pension Office, submitted statements on the latter's behalf. 23.", "On 18 February 1997 the Hamburg Social Court held a hearing. It consulted expert Bi., who partly modified the findings he had made in his report of 1994 and found that in fact it was not sure that the impairment to the applicant's psychological well-being was caused by the attack in 1985. 24. Following the acknowledgment of the court's proposal on 4 February 1997, the Hamburg Pension Office, by a decision of 4 April 1997, amended its decision of 26 September 1990. It found that the applicant's total earning capacity has been reduced by 30 per cent since 1 March 1990, granted him a pension under section 1 of the Victims Compensation Act (see paragraph 50 below) and ordered the payment of pension arrears of some 19,000 Deutschmarks (DEM).", "25. On 15 May 1997 and on 20 August 1997 the applicant requested the Social Court to set a date for a hearing and to deliver a judgment. 26. On 22 September 1997 neurological and psychiatric expert Bi. submitted an additional report at the Social Court's request.", "27. On 30 September 1997 the Hamburg Social Court, having held a hearing in which it had also consulted expert Bi., dismissed the applicant's action (file no. 30 VG 11/90). It found that, having regard to the opinions of the experts it had consulted, the Hamburg Social Office's decision of 4 April 1997 was lawful, as the applicant had been suffering a reduction in his earning capacity of 30 per cent due to orthopaedic damage since March 1990, whereas no psychological damage caused by the attack had been proved. 28.", "The judgment was served on 20 October 1997. D. The proceedings before the Hamburg Social Court of Appeal 29. On 20 November 1997 the applicant, represented by counsel, lodged an appeal with the Hamburg Social Court of Appeal. He claimed that the reduction of his earning capacity caused by the attack in 1985 amounted to 50 per cent in view of the psychological consequences of that attack in addition to the acknowledged physical damage. 30.", "On 19 July 1999 the applicant's counsel, having consulted the case-file in February 1998, gave reasons for his appeal at the court's repeated requests. 31. Between 22 November 1999 and May 2000 the applicant requested on five occasions that the Social Court of Appeal expedite the proceedings. 32. On 3 May 2000 the Social Court of Appeal granted the applicant legal aid.", "33. On 12 and 25 October 2000 the applicant requested the court to expedite the proceedings. The court replied on 6 November 2000 stating that it was currently unable to deal with the case as it had sent the files to the Social Court at the latter's request for consultation in different proceedings. 34. On 21 November 2001 N., a neurological and psychiatric expert appointed by the Social Court of Appeal on 19 September 2001, submitted his report.", "He found that no psychological damage had been caused to the applicant as a result of the attack in 1985. 35. On 19 December 2001 the Social Court of Appeal held a hearing in which it heard the parties and consulted expert N. It granted the applicant's request under section 109 of the Social Courts Act to consult another psychiatric expert, Ke., on condition that the applicant paid for the cost of the report. 36. On 6 February 2002 the applicant informed the court that he now had the money needed and that he could make a bank transfer covering costs.", "37. On 6 June 2002 the Social Court of Appeal appointed expert Ke. 38. On 16 July 2002 the applicant made an additional payment of costs at the expert's and the court's request. 39.", "On 3 February 2003 expert Ke. submitted his report. He found that the applicant suffered from post-traumatic stress disorder as a result of the attack in 1985 and estimated the reduction of the applicant's earning capacity caused by psychological damage alone to be 20 per cent. 40. On 26 February 2003 expert Ke.", "further explained his report at the court's request. On 22 May 2003 the Social Court of Appeal again sent the case-file to the Social Court for a calculation of costs; the file was returned on 7 July 2003. 41. On 27 August 2003 the applicant asked the court to expedite the proceedings. 42.", "On 6 January 2004 a further neurological expert (L.) consulted by the Social Court of Appeal submitted his report in which he found that it was not proved that the applicant had suffered post-traumatic stress disorder as a result of the attack in 1985. 43. On 27 January 2004 the Hamburg Social Court of Appeal, having held a hearing, dismissed the applicant's appeal as ill-founded and did not grant him leave to appeal on points of law (file no. IV VGBf 1/97). Having regard to the expert reports before it, it considered that it had not been proved that the applicant had suffered psychological damage as a result of the attack in 1985 as, in particular, the report of expert Ke.", "was not convincing. The Social Court of Appeal further rejected the applicant's case alleging bias on the part of neurological and psychiatric expert L. as having been lodged out of time, arguing that the applicant's counsel had been obliged to lodge that application on receipt of the applicant's comments on the expert report at the latest (18 January 2004). 44. The judgment was served on the applicant's counsel on 22 June 2004. E. The proceedings before the Federal Social Court 45.", "On 12 July 2004 the applicant, represented by an association for the protection of social rights, lodged a complaint about the refusal to be granted leave to appeal (Nichtzulassungsbeschwerde) with the Federal Social Court. In his reasoning submitted on 19 August 2004 he claimed that the Social Court of Appeal had deviated from the case-law of the Federal Social Court. Moreover, there had been a procedural error in that the length of the proceedings from 1990 until 2004 had breached his right to a fair trial within a reasonable time under the Basic Law and under Article 6 § 1 of the Convention. 46. On 25 August 2004 the Federal Social Court dismissed the applicant's complaint.", "It considered the complaint inadmissible as the applicant had failed to substantiate that there had been a procedural error or a deviation from the case-law of the Federal Social Court. In particular, he had failed to demonstrate that the judgment dismissing his action was based on the (undue) length of the proceedings. In any event, the applicant could lodge an application under Article 34 of the Convention with the European Court of Human Rights, whereby he could obtain compensation. 47. On 3 September 2004 the decision of the Federal Social Court was served on the applicant's representative.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Social Courts Act 48. Section 109 of the Social Courts Act, in the version in force at the relevant time, reads as follows: “(1) On request by ... the person entitled to benefits ..., a particular physician has to be heard as an expert. The hearing of this expert may be made dependant on the person who is making the request advancing the costs and, unless the court decides otherwise, the person making the request bearing the costs in the end.", "(2) The court may reject a request if its admission would delay the settlement of the legal dispute and if the court is convinced that the request was submitted in an attempt to delay the proceedings or was not submitted earlier due to gross negligence.” 49. In view of the requirements of § 2 of this provision, domestic courts in practice rarely reject a request to hear another expert. B. The Victims Compensation Act 50. The relevant part of section 1 § 1 of the Victims Compensation Act, in its version in force at the relevant time, reads as follows: “(1) A person who ... has sustained damage to his health attributable to an intentional and unlawful attack upon himself ... shall, on application, be granted benefits in accordance with the provisions of the Federal War Victims Relief Act in respect of resulting health impairments and financial loss.“ THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 51. The applicant complained that the length of the proceedings before the Social Courts concerning his pension claim had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 52. The Government left open whether the length of the proceedings complied with the “reasonable time” requirement under Article 6. They argued that the proceedings at issue had been complex because it had been necessary to obtain neurological and surgical expert advice. The applicant had delayed the proceedings for one year and four months by belatedly submitting his reasons for appeal.", "Moreover, the period of some three years it had taken to obtain the three expert reports requested by the applicant under section 109 of the Social Courts Act could not be attributed to the courts, which could only refuse to take expert evidence under that provision if they were convinced that the applicant attempted to delay the proceedings. The subject-matter of the proceedings had also not called for particular diligence. The Government conceded, however, that there was no convincing explanation for certain delays, in particular, for those caused by the Social Court of Appeal by sending the original files to the Social Court for questions concerning costs when the proceedings were still pending before the appeal court. 53. The period to be taken into consideration began on 17 October 1990 when the applicant brought his action in the Social Court and ended on 3 September 2004 when the decision of the Federal Social Court was served on his counsel.", "The proceedings thus lasted more than thirteen years and ten months for three levels of jurisdiction. A. Admissibility 54. The Court notes that the proceedings at issue for payment of an additional pension under the Victims Compensation Act concern the determination of the applicant's “civil rights” within the meaning of Article 6 § 1, which is therefore applicable (see, in particular, Glüsen v. Germany, no. 1679/03, §§ 60-62, 10 January 2008). The applicant also exhausted domestic remedies as, in particular, a complaint to the Federal Constitutional Court would not have been a remedy capable of affording him adequate redress for the length of the civil proceedings brought by him (see Sürmeli v. Germany [GC], no.", "75529/01, §§ 103-108, ECHR 2006‑..., and Herbst v. Germany, no. 20027/02, §§ 63-66 and 68, 11 January 2007). His complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 55. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 56.", "The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 57. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. It notes, in particular, that the proceedings, which were of some complexity and necessitated the consultation of medical experts, were pending before the Social Court for some seven years and before the Social Court of Appeal for some six years and seven months. It considers that the applicant delayed the proceedings in that he did not submit reasons for his appeal until July 1999 after having consulted the case-file in February 1998.", "Moreover, his requests for consultation of three additional medical experts under section 109 of the Social Courts Act (see paragraphs 18, 20 and 35 above) contributed to the length of the proceedings. However, the fact that the applicant availed himself of the possibility to request the consultation of further experts under the said provision does not warrant the conclusion that the time elapsed for obtaining these reports will be attributed only to him. The courts remained under a duty to obtain the necessary expert advice in an efficient and speedy manner, a duty which they did not comply with in the present case. The Court further reiterates in that connection that a legal provision which provides for the possibility to request a further expert opinion even though the expert advice considered necessary by the court to take its decision has already been obtained will contribute, as in the present case, to the length of the proceedings (see, mutatis mutandis, Glüsen, cited above, § 83). The said provision also does not exempt the domestic courts from the obligation to ensure compliance with the “reasonable time” requirement (see, inter alia, Vaas v. Germany, no.", "20271/05, § 68, 26 March 2009). 58. Furthermore, the Court observes that in the proceedings the applicant's claims for a pension for loss of his earning capacity following an attack on him was at stake, which must be considered as involving an issue of importance for him. However, it also notes that the Social Courts decided on his first claim for a higher pension already in 1988 and that he received a payment of pension arrears in 1997. 59.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. THE APPLICANT'S REMAINING COMPLAINT 60. The applicant further claimed that the proceedings had not been fair in that the Social Court of Appeal had arbitrarily dismissed his claim of bias against expert L., whose report the applicant had received only fourteen days before lodging the request, as having been lodged out of time and had thus failed to hear his arguments on the merits of the request.", "61. The Court has examined the applicant's remaining complaint, which falls to be examined under Article 6, as submitted by him. However, having regard to all material in its possession, the Court finds that the applicant did not exhaust domestic remedies in this respect because, in any event, he failed to obtain a decision by the Federal Constitutional Court. 62. It follows that the remainder of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63. 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 64. The applicant claimed EUR 15,000 in respect of non-pecuniary damage.", "He argued that he had suffered and his health had deteriorated because of the length of the proceedings. 65. The Government left the matter to the Court's discretion, but considered the applicant's claim to be excessive. 66. The Court considers that the applicant must have sustained non-pecuniary damage.", "Ruling on an equitable basis, it awards him EUR 9,800 under that head, plus any tax that may be chargeable. B. Costs and expenses 67. The applicant also claimed EUR 3,954.39 for the costs and expenses incurred before the domestic courts. These included costs for a medical examination by an expert, train, taxi and hotel costs to visit experts and further costs for expert evidence taken in the proceedings.", "68. Submitting documentary evidence, the applicant further claimed EUR 2,887.94 for the costs and expenses incurred before the Court. These included EUR 384.60 for costs for photocopying the case-file, EUR 54,20 for taxi costs to meet with his counsel and EUR 2,449.14 (including VAT) for counsel's fees, which, as had been agreed upon between counsel and an association for the protection of victims of offences (Weisser Ring e.V.) as a condition for counsel to represent the applicant, were borne by the said association. 69.", "The Government contested these claims for lack of a causal connection between these costs and the duration of the proceedings. 70. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings as it does not discern any causal link between the violation found and the specific costs claimed. As to counsel's fees, the Court notes that the applicant was not, in the event, liable to pay them and did not pay them (see, mutatis mutandis, Dudgeon v. the United Kingdom (Article 50), 24 February 1983, §§ 21-22, Series A no.", "59) and they were thus not actually incurred by him. As to the further costs and expenses claimed by the applicant, the Court considers that they were actually incurred and considers it reasonable to award the applicant EUR 200 in this respect, plus any tax that may be chargeable to him. C. Default interest 71. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, (i) EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 25 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsKarel JungwiertDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF MOMČILOVIĆ AND OTHERS v. SERBIA (Applications nos. 16254/08 and 2 others – see appended list) JUDGMENT STRASBOURG 5 December 2017 This judgment is final but it may be subject to editorial revision. In the case of Momčilović and Others v. Serbia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Pere Pastor Vilanova, President,Branko Lubarda,Georgios A. Serghides, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 14 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos. 16254/08, 53679/13 and 22243/14) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Serbian nationals, Mr Radosav Momčilović (“the first applicant”), Mr Livius Lapadat (“the second applicant”) and Mr Dragan Radin (“the third applicant”).", "Their further personal and other relevant details are set out in the appended table. 2. The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was subsequently substituted by their current Agent, Ms N. Plavšić. 3. On 20 October 2015 the second applicant’s representative informed the Court that the applicant had died on 25 May 2014, and on 14 January 2016 that his heirs were his wife, Ms Dojnica Lapadat, and son, Mr Livius Lapadat.", "On 30 January 2016 designated heirs expressed their wish to pursue the proceedings on behalf of the second applicant and submitted powers of attorney for the same lawyer. For practical reasons, Mr Livius Lapadat will continue to be referred to as the second applicant in this judgment, although his heirs are now to be regarded as such (see Tomašević v. Montenegro, no. 7096/08, §§ 13-16, 13 June 2017). 4. On 20 October 2015 the applications were communicated under Article 6 § 1 and 13 to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants complained about the failure of the domestic courts to enforce final court judgments rendered in their favour. 6. All applicants obtained decisions of the Constitutional Court, which found a violation of their right to a hearing within a reasonable time and awarded them certain sums in respect of the non-pecuniary damage suffered (see the appended table).", "7. The Court further notes that the proceedings in question are still pending before domestic courts as regards the first applicant. With respect to the second applicant, the Court will consider that the proceedings have been terminated on 30 November 2015. Namely, on that day the Zrenjanin Court of First Instance informed the Government that on an unspecified date the second applicant’s heirs had transferred their claim to their attorney and that they were therefore no longer parties to the domestic proceedings. Lastly, regarding the third applicant, the proceedings were terminated on 8 May 2013.", "THE LAW I. JOINDER OF THE APPLICATIONS 8. The Court considers that, in accordance with Rule 42 § 1 of the Rules of the Court, the applications should be joined, given their common factual and legal background. II. ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF THE CONVENTION 9. The applicants complained under Article 6 § 1 and Article 13 of the Convention about the non-enforcement of the final court decisions.", "In so far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. The Government’s objection concerning the alleged abuse of the right of petition 10. The Government submitted that the second applicant’s lawyer intentionally hid from the Court that the applicant had passed away during the proceedings, amounting to an abuse of the right of petition, within the meaning of Article 35 § 3 of the Convention. 11. The Court recalls that an application may only be rejected as abusive within the meaning of Article 35 § 3 of the Convention in extraordinary circumstances, such as if an application was deliberately grounded on a description of facts omitting or distorting events of central importance (see, for example, Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996-IV; Varbanov v. Bulgaria, no.", "31365/96, § 36, ECHR 2000-X; and Assenov and Others v. Bulgaria, Commission decision of 27 June 1996, Decisions and Reports (DR) 86-B, p. 54). Furthermore, the applicant is not expected to present all possible information on a case. It is, however, his duty to present at least those essential facts which are at his disposal and which he must be aware are of significant bearing for the Court to be able to properly assess the case (see, for example, Milosavljev v. Serbia, no. 15112/07, § 36, 12 June, Al-Nashif and Others v. Bulgaria, (dec.) no. 50963/99, 25 January 2001).", "12. Turning to the present case, the Court notes that the second applicant’s lawyer informed the Court of the applicant’s death by letter of 20 October 2015. By letter of 14 January 2016 he also submitted the final decision of the Zrenjanin Court of First Instance regarding the determination of the applicant’s successors, whereas by his letter of 30 January 2015 he informed the Court that the applicant’s successors wish to pursue the proceedings with the Court and supplied the Court with powers of attorney signed by them. 13. It follows that the Government’s objection must be dismissed.", "2. The Government’s objection concerning the loss of victim status 14. The Government submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention since the Constitutional Court had found that their right to a hearing within a reasonable time had been violated and had awarded them adequate redress. The violation complained of had therefore been remedied before the domestic authorities and the applicants had lost their victim status. 15.", "The Court considers that this objection is closely linked to the substance of the applicants’ complaints and must therefore be joined to the merits. 3. Conclusion 16. The Court further notes that the applications are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 17. The Government submitted that since all applicants obtained decisions from the Constitutional Court they had therefore lost their victim status. In the Government’ s opinion, the finding of a violation and the awarding of compensation for the non-pecuniary damage suffered constituted sufficient redress for the breach of the applicants’ right to a hearing within a reasonable time.", "18. The applicants disagreed. They submitted that, in spite of the Constitutional Court’s decisions, they were still “victims” within the meaning of Article 34 of the Convention. They argued that the amounts of compensation awarded to them were insufficient. Additionally, the first applicant maintained that his proceedings were still pending and that he could not enforce his significant monetary claim against the debtor who had died in the meantime, an allegation which the Government did not contest in their observations.", "19. The Court recalls that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Vidaković v. Serbia (dec.) no. 16231/07, § 24 May 2011; Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V; and Cataldo v. Italy (dec.), no.", "45656/99, 3 June 2004). 20. In this respect, the Court notes that the Constitutional Court had indeed found that the applicants’ right to a hearing within a reasonable time had been violated, thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court’s case law. 21. The applicants’ victim status then depends on whether the redress afforded to them was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no.", "67299/01, 19 October 2004). 22. In this connection, the Court recalls that in non-enforcement cases one of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded. This amount depends, in particular, on the characteristics and effectiveness of the remedy. Thus, States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which – while being lower than those awarded by the Court – are not unreasonable (see Cocchiarella v. Italy [GC], cited above, §§ 96, 97).", "23. Turning to the amounts of redress awarded to the applicants, the Court notes that those amounts are significantly lower compared with the sums awarded for comparable delays in the Court’s case-law. It would emphasize, in this respect, the importance of a reasonable amount of just satisfaction being awarded in the domestic system for the remedy in question to be considered as effective under the Convention. Whether the amount awarded may be regarded as reasonable, however, falls to be assessed in the light of all the circumstances of the case. These include not merely the duration of the proceedings in the specific case but the value of the award judged in the light of the standard of living in the State concerned, and the fact that under the national system compensation will in general be awarded and paid more promptly than would be the case if the matter fell to be decided by the Court under Article 41 of the Convention.", "24. In view of the material in the files and having regard to the particular circumstances of the proceedings in question, the Court considers that the sums awarded to the applicants cannot be considered sufficient and therefore do not amount to appropriate redress for the violations suffered. Additionally, the Court notes that the enforcement proceedings are still pending in the case of the first applicant. The Court therefore concludes that none of the applicants can be deemed to have lost his status as a victim within the meaning of Article 34 of the Convention. 25.", "In view of the above the Court concludes that in the present case the length of the enforcement proceedings was excessive and failed to meet the “reasonable time” requirement. 26. The Court accordingly considers that there has been a violation of Article 6 § 1 of the Convention and rejects the Government’s preliminary objection as regards the applicants’ victim status. 27. Having reached this conclusion, the Court also does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no.", "12312/05, § 90, 20 April 2010). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage, costs and expenses 29.", "The applicants claimed various amounts in respect of the non-pecuniary damage suffered by each of them, as well as the costs and expenses. The first applicant also requested to be awarded pecuniary damages, which is the amount awarded by the final domestic judgment which remained unenforced. All sums are indicated in the appended table. 30. The Government found the applicants’ claims concerning non-pecuniary damage excessive and emphasized that all applicants had already been paid the sums awarded by the Constitutional Court, whereas the third applicant was also paid 8,810 Serbian dinars in respect of costs of enforcement proceedings.", "31. Regard being had to the documents in its possession and to its case‑law the Court considers it reasonable to award the sums indicated in the appended table in respect of non-pecuniary damage and costs and expenses, less any and all amounts which may have already been paid in that regard at the domestic level. 32. As regards the request of the first applicant, the Court notes that the Government did not comment on this request, but finds that there is no causal link between the violation found and the pecuniary damage alleged. It therefore rejects the first applicant’s claim for pecuniary damage.", "B. Default interest 33. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Decides to join to the merits the Government’s preliminary objection as to the applicants’ victim status, and dismisses it; 3. Declares the applications admissible; 4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of each applicant; 5. Holds that there is no need to examine separately their complaints under Article 13 of the Convention; 6. Holds (a) that the respondent State shall ensure that all necessary steps are taken to allow the domestic proceedings in the case of the first applicant to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice; (b) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table in respect of non-pecuniary damage and costs and expenses, plus any tax that may be chargeable on these amounts, which are to be converted into the currency of the respondent State at the rate applicable at the date of settlement, after the deduction of any amounts which may have already been paid on this basis; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7.", "Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 5 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPere Pastor VilanovaDeputy RegistrarPresident No. Application no. and date of introduction Applicant name date of birth nationality Represented by Final domestic decision details Start of proceedings End of Proceedings Length of enforcement proceedings Constitutional Court decision details; just satisfaction awarded (if any) Amounts of non-pecuniary and pecuniary damages, and costs and expenses requested in euros Amounts awarded for non-pecuniary damage and costs and expenses per applicant in euros (Plus any tax that may be chargeable to the applicants.", ")[1] 16254/08 19/03/2008 Radosav MOMČILOVIĆ 11/11/1951 Serbian - Fifth Municipal Court in Belgrade XXI P. 630/97 of 13 June 1997 25 March 2002 pending 11 years and 5 months Už 2694/2009 of 7 July 2011 70,000 RSD (580 Euros) Non-pecuniary damage + costs: 3,500+500 Pecuniary damage: 59,476.38 Non-pecuniary damage: 3,600 Costs and expenses: 100 53679/13 04/07/2013 Livius LAPADAT 06/01/1934 Serbian Dragan RADIN Municipal Court in Zrenjanin P. 1691/05 of 22 January 2007 28 December 2007 30 November 2015 7 years and 7 months Už 2888/2011 of 23 May 2013 400 Euros Non-pecuniary damage + costs: 3,600 + 500 Non-pecuniary damage: 3,600 Costs and expenses: 500 22243/14 27/11/2013 Dragan RADIN 30/10/1949 Serbian - Municipal Court in Novi Bečej P. 115/08 of 26 June 2008 29 October 2008 8 May 2013 6 years and 9 months Už 246/2011 of 30 October 2013 200 Euros Non-pecuniary damage + costs: 3,600+100 Non-pecuniary damage: 3,000 Costs and expenses: 100 APPENDIX [1]. Less any amounts which may have already been paid on this basis at the domestic level." ]

[ "SECOND SECTION CASE OF MEHMET AND SUNA YİĞİT v. TURKEY (Application no. 52658/99) JUDGMENT STRASBOURG 17 July 2007 FINAL 17/10/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mehmet and Suna Yiğit v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B.", "Baka,MrR. Türmen,MrM. Ugrekhelidze,MrV. Zagrebelsky,MrsD. Jočienė,MrD.", "Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 26 June 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 52658/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mehmet Yiğit and Mrs Suna Yiğit (“the applicants”), on 4 August 1999. 2. The applicants were represented by Mr Tanrıkulu, a lawyer practising in Diyarbakır.", "The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court. 3. On 24 November 2004 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 3. The applicants were born in 1970 and 1969 respectively and live in the District of Ergani, in Diyarbakır. 4. On 27 June 1997 the applicants' daughter, Esra Yiğit, then aged seven months, underwent surgery at the Dicle University Medical Faculty Hospital for a congenital hip dislocation. During the operation, she had a cardiac arrest and lapsed into a coma.", "On 13 July 1997 Esra Yiğit came out of the coma, but she was unable to move her arms and legs. On 15 July 1997 she was admitted to the neurosurgery department and was diagnosed as suffering from “hypoxic brain syndrome”. On 21 July 1997 she was discharged from the hospital. 5. On 13 May 1998 the applicants filed a compensation claim with the Rectorate of the Dicle University for the pecuniary and non-pecuniary damage caused by the alleged negligence of the medical staff who performed the operation.", "No response was given to the applicants within the sixty day period prescribed in the Code of Administrative Procedure. 6. On 11 August 1998 the applicants filed an action with the Diyarbakır Administrative Court, requesting compensation. They also requested legal aid for the court fees. 7.", "On an unspecified date Mehmet Yiğit obtained a certificate from the office of the headman (muhtarlık) attesting to his indigence. 8. On 26 August 1998 Mehmet Yiğit further applied to the Office of the District Governor in Ergani, requesting an official certificate as to whether he owned property in Ergani. 9. On the same day, the Office of the District Governor, the Directorate of Land Registration and the Ergani Municipality drafted attestations stating that Mehmet Yiğit did not own any immovable property in Ergani.", "10. On 27 August 1998 the Ergani Revenue Department informed the District Governor's Office that it had no records indicating that Mehmet Yiğit paid tax. 11. On an unspecified date the Diyarbakır Administrative Court dismissed the case on procedural grounds. The domestic court stated that the applicants could lodge a new case within one month following the rectification of the defects in their application.", "12. On 19 October 1998 the applicants applied to the Diyarbakır Civil Court of General Jurisdiction, requesting exemption from paying the court fees. The court granted their request. 13. On 23 October 1998, after rectifying the procedural shortcomings in their first petition, the applicants lodged another case with the Diyarbakır Administrative Court.", "In their petition, they repeated their request for legal aid for the court fees. 14. On 17 November 1998 the Diyarbakır Administrative Court dismissed the applicants' request for legal aid. The court held that, since the applicants were represented by a lawyer, they could not be considered to be in need of legal aid. (The applicants had had a contingency fee arrangement with their lawyer.)", "In its decision, the court referred to the case-law of the Supreme Administrative Court and the provisions of the Civil Procedure Code. 15. On 1 December 1998 and 4 February 1999, the Diyarbakır Administrative Court notified the applicants that they were required to pay 180,000,000 Turkish liras (TRL)[1] in respect of the court fees. 16. On 8 March 1999 the applicants lodged a petition with the administrative court requesting the annulment of the decision dated 17 November 1998.", "In their petition, they stated, inter alia, that they did not have sufficient means to pay the court fees and that the rejection of their request for legal aid was in violation of their right of access to a court. 17. On 16 April 1999 the Diyarbakır Administrative Court discontinued the proceedings because the applicants had not paid the necessary legal fees. 18. On 16 October 2001 the Supreme Administrative Court upheld the decision of 16 April 1999.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Administrative Procedure 19. Article 31 of the Code of Administrative Procedure provides that when administrative court judges determine a legal aid request, they should apply the relevant provisions of the Code of Civil Procedure (Articles 465-472, below). B.", "Code of Civil Procedure 20. Article 465 states that a request for legal aid may only be granted if the claimant submits evidence in support of his/her request. 21. According to Article 468, in order to determine whether or not the person applying for legal aid has sufficient means, he/she shall be required to submit a certificate attesting to his/her indigence; another certificate indicating whether or not the individual owns any property and an attestation regarding how much, if any, tax he/she had paid. These certificates should be obtained from the appropriate domestic authorities.", "22. Article 469 provides that decisions regarding legal aid are binding. C. Relevant economic data 23. In November 1998, the minimum wage in force was 47,839,500 Turkish liras (approximately 158 US Dollars) a month. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 24. The applicants complained that they had been denied access to a court, invoking Article 6 §1 of the Convention which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 25. The Government contested that argument. A. Admissibility 26. In their observations, the Government submitted two preliminary objections.", "In the first place, they maintained that the applicants have not exhausted the domestic remedies and argued that they could have initiated criminal proceedings against the medical staff that operated on their daughter. Secondly, the Government asked the Court to reject the application for non-compliance with the six months time-limit. In their view, the applicants should have lodged their application with the Court following the decision of the Diyarbakır Administrative Court dated 17 November 1998, since decisions regarding legal aid are binding pursuant to Article 469 of the Code of Civil Procedure. 27. As regards exhaustion of domestic remedies, the Court observes that the domestic law provided administrative and criminal remedies to the applicants in respect of their allegation that their daughter had been paralysed because of medical malpractice.", "The Court recalls at this point that it is for the individual to select which legal remedy to pursue for obtaining redress for the breaches alleged (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 23). In the present case, the applicants' main complaint is the suffering that they had to endure because of their daughter's illness, which in their view was the result of a medical malpractice. As they chose to seek reparation by initiating compensation proceedings, the Court is of the opinion that they were not required to bring the criminal proceedings as suggested by the Government. 28.", "As regards the Government's second objection, the Court observes that the applicants have lodged their application within six months of the decision of the Diyarbakır Administrative Court, dated 16 April 1999, by which it was decided to discontinue the compensation proceedings because of the applicants' failure to pay the court fees. This judgment was subsequently upheld by the Supreme Administrative Court on 16 October 2001. In the present case, as the main legal problem is the applicants' right of access to a court, the Court concludes that they have filed their application within the six months time-limit as required by Article 35 § 1 of the Convention. 29. In view of the above, the Court rejects the Government's objections.", "30. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 31. The applicants maintained that they had been denied access to court as the court fees were set at a level far beyond their means. They further stated that the administrative court's decision rejecting their legal aid request had been unfair. In this connection, they stated that, although they had submitted the relevant documents which attested to their indigence, the Administrative Court had refused to grant legal aid because they were being represented by a lawyer. 32.", "The Government contested this claim. They stated that the decisions of the domestic courts had been delivered in accordance with the domestic law and did not breach the applicants' right of access to court 33. The Court reiterates that the “right to a court” is not absolute. It may be subject to limitations permitted by implication because the right of access by its very nature calls for regulation by the State. Guaranteeing to litigants an effective right of access to courts for the determination of their “civil rights and obligations”, Article 6 § 1 leaves to the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the ultimate decision as to the observance of the Convention's requirements rests with the Court (see Kreuz v. Poland, no.", "28249/95, § 53, ECHR 2001‑VI). 34. A restriction placed on access to a court or tribunal will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316‑B, § 59). According to the Court's case-law, a financial limitation may be imposed in the interests of a fair administration of justice.", "In the past, the Court has held that the requirement to pay fees to civil courts in connection with the claims which they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention. It reiterates, however, that the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the phase of the proceedings at which that restriction has been imposed, are factors which are material in assessing whether or not a person enjoyed the right of access and had “a ... hearing by [a] tribunal” (see Kreuz, cited above, § 60). 35. In the present case, the Court must therefore determine whether the requirement to pay the court fees imposed on the applicants constituted a restriction in breach of their right of access to a court. 36.", "The Court notes that the applicants' daughter underwent surgery in the Dicle University Medical Faculty and lapsed into a coma during the operation. Subsequently, she came out of the coma but lost the ability to move her arms and legs. Following this incident, the applicants sought to initiate compensation proceedings against the Dicle University. To initiate these proceedings, under domestic legislation, they were required to pay court fees amounting to TRL 180,000,000. At this point, it should be underlined that, in December 1998, this amount was four times higher than the monthly minimum wage in force at the time (see paragraph 23 above).", "It is also an undisputed fact that, at the time of the events, the applicants had no income. This fact was supported by certificates submitted by the applicants to the Diyarbakır Administrative Court (see paragraphs 7-10 above). Furthermore, in October 1998, based on these documents, the Diyarbakır Civil Court of General Jurisdiction decided to exempt the applicants from paying the court fees (see paragraph 12 above). In view of the foregoing, the Court considers that the amount of the court fees imposed by the Administrative Court constituted an excessive burden on the applicants. 37.", "Furthermore, it is observed that, when the Administrative Court refused to exempt the applicants from paying the court fees, it referred to the case-law of the Supreme Administrative Court, according to which no legal aid was to be granted to claimants who were represented by a lawyer. The Court recalls that, pursuant to Article 19 of the Convention, its task is not to substitute itself for the competent domestic authorities in determining the most appropriate policy for regulating access to domestic courts. Nor can it re-assess the facts which led that court to adopt one decision rather than another. The Court's role is limited to a review under the Convention of the decisions which those authorities have taken in the exercise of their power of appreciation (see Tolstoy Miloslavsky, cited above, § 59). However, in the instant case, the Court considers that the reason, given by the Administrative Court, when refusing to award legal aid to the applicants, is wholly insufficient.", "It is true that the applicants hired a lawyer to pursue the compensation proceedings; however, this does not mean that they had the means to pay the court fees. Furthermore, the applicants' lawyer had explained to the domestic courts that he had not received any money from the applicants to pursue their case, but they had agreed to pay him a certain percentage of any compensation received at the end of the proceedings. 38. Consequently, in the Court's view, the requirement that the applicants, who had no income, had to pay court fees which amounted to four times more than the monthly minimum wage at the time, cannot be considered proportionate. 39.", "The Court concludes that in the instant case there has been a disproportionate restriction on the applicants' right of access to a court. There has accordingly been a violation of Article 6 § 1 in that respect. II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION, AND ARTICLE 1 OF PROTOCOL NO. 1 40.", "The applicants complained of the suffering which they have endured because of their daughter's illness, as a result of medical malpractice and the lack of compensation. In this respect, they relied on Articles 3 and 8 of the Convention, as well as Article 1 of Protocol No. 1. 41. The Government contested those allegations.", "42. The Court notes that these complaints are linked to the one examined above and must likewise be declared admissible. 43. The Court further notes that the main Convention question raised in the instant application was the applicants' right of access to a court, pursuant to Article 6 § 1 of the Convention. Having found a violation of this provision (paragraphs 35-39 above), the Court considers that there is no need to make a separate ruling on the applicants' other complaints, given the fact that it cannot determine the issues of malpractice or compensation as a first instance court itself (see Uzun v. Turkey, no.", "37410/97, § 64, 10 May 2007; Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 73, ECHR 2001‑VIII). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 45. The applicants claimed 1,962,681,000,00 Turkish liras (TRL) –approximately 1,216,789.21 euros (EUR) – in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage. 46. The Government, considering the requested amounts excessive, contested these claims. 47.", "As regards material damage, the Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicants, as far as possible, are put in the position in which they would have been had this provision not been disregarded (see Teteriny v. Russia, no. 11931/03, § 56, 30 June 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006‑...). The Court finds that this principle applies in the present case as well. Consequently, it considers that the most appropriate form of redress would be to annul or otherwise put aside the administrative court decisions of 16 April 1999 and 16 October 2001 (paragraphs 17 and 18 above) and restart the proceedings before the Diyarbakır Administrative Court, in accordance with the requirements of Article 6 § 1 of the Convention, should the applicants so request (see, mutatis mutandis, Gençel v. Turkey, no.", "53431/99, § 27, 23 October 2003). 48. As regards non-pecuniary damage, deciding on an equitable basis, the Court awards the applicants EUR 10,000 under this head. B. Costs and expenses 49.", "The applicants also claimed EUR 4,712 for the costs and expenses incurred before the Court. In respect of their claims, the applicants relied on the Diyarbakır Bar Association's list of recommended minimum fees and submitted a document showing the number of hours – 38 – spent by the lawyer on their case. 50. The Government contested this claim. 51.", "According to the Court's case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court. C. Default interest 52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there is no need to examine separately the applicants' other complaints under Articles 3 and 8 of the Convention, or Article 1 of Protocol No. 1; 4. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into New Turkish liras at the rate applicable at the date of settlement and free of any taxes or charges that may be payable: (i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses.", "(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Done in English, and notified in writing on 17 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléF. Tulkens RegistrarPresident [1] Approximately 514 euros" ]

[ "FIRST SECTION CASE OF BIG BROTHER WATCH AND OTHERSv. THE UNITED KINGDOM (Applications nos. 58170/13, 62322/14 and 24960/15) JUDGMENT STRASBOURG 13 September 2018 Referral to the Grand Chamber 04/02/2019 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. TABLE OF CONTENTS PROCEDURE THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE A. Background B. The secret surveillance schemes 1. Government Communications Headquarters (“GCHQ”) 2. The United States’ National Security Agency (“NSA”) (a) PRISM (b) Upstream C. Domestic proceedings in the first and second of the joined cases D. Domestic proceedings in the third of the joined cases 1.", "The hearing 2. The IPT’s first judgment of 5 December 2014 (a) The PRISM issue (b) The section 8(4) issue 3. The IPT’s second judgment of 6 February 2015 4. The IPT’s third judgment of 22 June 2015 as amended by its 1 July 2015 letter II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "The interception of communications 1. Warrants: general 2. Warrants: section 8(4) (a) Authorisation (b) “External” communications 3. Specific safeguards under RIPA (a) Section 15 (b) Section 16 4. The Interception of Communications Code of Practice 5.", "Statement of Charles Farr 6. Belhadj and Others v. Security Service, Secret Intelligence Service, Government Communications Headquarters, the Secretary of State for the Home Department, and the Secretary of State for the Foreign and Commonwealth Office, IPT/13/132-9/H and IPT/14/86/CH B. Intelligence sharing 1. British-US Communication Intelligence Agreement 2. Relevant statutory framework for the operation of the intelligence services (a) MI5 (b) MI6 (c) GCHQ (d) Counter-Terrorism Act 2008 (e) The Data Protection Act 1998 (“DPA”) (f) The Official Secrets Act 1989 (“OSA”) (g) The Human Rights Act 1998 (“HRA”) 3.", "The Interception of Communications Code of Practice C. Acquisition of communications data 1. Chapter II of RIPA 2. The Acquisition and Disclosure of Communications Data: Code of Practice 3. News Group and Others v. The Commissioner of Police of the Metropolis IPT/14/176/H, 17 December 2015 4. The Police and Criminal Evidence Act 1984 D. IPT practice and procedure 1.", "RIPA 2. The Investigatory Powers Tribunal Rules 2000 (“the Rules”) 3. IPT ruling on preliminary issues of law 4. Counsel to the Tribunal E. Oversight F. Reviews of interception operations by the intelligence service 1. Intelligence and Security Committee of Parliament: July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme 2.", "Privacy and security: a modern and transparent legal framework 3. “A Question of Trust”: Report of the Investigatory Powers Review by the Independent Reviewer of Terrorism Legislation (“the Anderson Report”) 4. A Democratic Licence to Operate: Report of the Independent Surveillance Review (“ISR”) 5. Report of the Bulk Powers Review 6. Attacks in London and Manchester March-June 2017: Independent Assessment of MI5 and Police Internal Reviews 7.", "Annual Report of the Interception of Communications Commissioner for 2016 (a) Section 8(4) warrants (b) Acquisition of communications data under Chapter II of RIPA G. The Investigatory Powers Act 2016 H. Relevant international law 1. The United Nations (a) Resolution no. 68/167 on The Right to Privacy in the Digital Age (b) The Constitution of the International Telecommunication Union 1992 (c) The 2006 Annual Report of the International Law Commission 2. The Council of Europe (a) The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 (b) The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181) (c) Recommendation of the Committee of Ministers on the protection of personal data in the area of telecommunication services (d) The 2001 (Budapest) Convention on Cybercrime (e) The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies I. European Union law 1.", "Charter of Fundamental Rights of the European Union Article 7 – Respect for private and family life Article 8 – Protection of personal data Article 11 – Freedom of expression and information 2. EU directives and regulations relating to protection and processing of personal data 3. Relevant case-law of the Court of Justice of the European Union (“CJEU”) (a) Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Seitinger and Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238) (b) Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (Cases C‑203/15 and C‑698/15; ECLI:EU:C:2016:970) (c) Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service and Secret Intelligence Service (IPT/15/110/CH; EU OJ C 22, 22.1.2018, p. 29–30) THE LAW I. EXHAUSTION OF DOMESTIC REMEDIES A. The parties’ submissions 1. The Government 2.", "The applicants B. The submissions of the third party C. The Court’s assessment 1. General principles 2. Application of those principles to the case at hand II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A.", "The section 8(4) regime 1. Admissibility 2. Merits (a) The parties’ submissions (i) The applicants (ii) The Government (b) The submissions of the third parties (i) Article 19 (ii) Access Now (iii) ENNHRI (iv) The Helsinki Foundation for Human Rights (“HFHR”) (v) The International Commission of Jurists (“ICJ”) (vi) Open Society Justice Initiative (“OSJI”) (vii) European Digital Rights (“EDRi”) and other organisations active in the field of human rights in the information society (viii) The Law Society of England and Wales (c) The Court’s assessment (i) General principles relating to secret measures of surveillance, including the interception of communications (ii) Existing case-law on the bulk interception of communications (iii) The test to be applied in the present case B. The intelligence sharing regime 1. Admissibility (a) The parties’ submissions (b) The Court’s assessment 2.", "Merits (a) The parties’ submissions (i) The applicants (ii) The Government (b) The submissions of the third parties (i) The Electronic Privacy Information Center (“EPIC”) (ii) Access Now (iii) Bureau Brandeis (iv) Center for Democracy and Technology (“CDT”) and Pen American Center (“PEN America”) (v) The International Commission of Jurists (“ICJ”) (vi) Open Society Justice Initiative (“OSJI”) (vii) The Law Society of England and Wales (viii) Human Rights Watch (“HRW”) (c) The Court’s assessment (i) The scope of the applicants’ complaints (ii) The nature of the interference (iii) The applicable test (iv) Application of the test to material falling into the second category (v) Application of the test to material falling into the third category C. The Chapter II regime 1. Admissibility 2. Merits (a) The parties’ submissions (i) The applicants (ii) The Government (b) The Court’s assessment (i) Existing case-law on the acquisition of communications data (ii) The approach to be taken in the present case (iii) Examination of the Chapter II regime III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A. Admissibility 1. The applicants in the third of the joined cases 2.", "The applicants in the second of the joined cases B. Merits 1. The parties’ submissions (a) The applicants (b) The Government 2. The submissions of the third parties (a) The Helsinki Foundation for Human Rights (b) The National Union of Journalists (“NUJ”) and the International Federation of Journalists (“IFJ”) (c) The Media Lawyers’ Association (“MLA”) 3. The Court’s assessment (a) General principles (b) The application of the general principles to the present case (i) The section 8(4) regime (ii) The Chapter II regime (iii) Overall conclusion IV.", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION COMBINED WITH ARTICLES 8 AND 10 OF THE CONVENTION VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest FOR THESE REASONS, THE COURT: APPENDIX PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE KOSKELO, JOINED BY JUDGE TURKOVIĆ I. The RIPA section 8(4) regime (i) The context of earlier case-law (ii) The context of the present case (iii) Concerns II.", "The intelligence-sharing regime JOINT PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGES PARDALOS AND EICKE Introduction Admissibility The section 8(4) regime Post Scriptum In the case of Big Brother Watch and Others v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Aleš Pejchal,Ksenija Turković,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 7 November 2017 and 3 July 2018, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in three applications (nos. 58170/13, 62322/14 and 24960/15) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the companies, charities, organisations and individuals listed in the Appendix (“the applicants”) on 4 September 2013, 11 September 2014 and 20 May 2015 respectively. 2. The applicants were represented by Mr D. Carey, of Deighton Pierce Glynn Solicitors; Ms R. Curling of Leigh Day and Co. Solicitors; and Ms E. Norton of Liberty.", "The Government of the United Kingdom (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth Office. 3. The applicants complained about the scope and magnitude of the electronic surveillance programmes operated by the Government of the United Kingdom. 4. The applications were communicated to the Government on 7 January 2014, 5 January 2015 and 24 November 2015.", "In the first case, leave to intervene was granted to Human Rights Watch, Access Now, Bureau Brandeis, Center For Democracy & Technology, European Network of National Human Rights Institutions and the Equality and Human Rights Commission, the Helsinki Foundation For Human Rights, the International Commission of Jurists, Open Society Justice Initiative, The Law Society of England and Wales and Project Moore; in the second case, to the Center For Democracy & Technology, the Helsinki Foundation For Human Rights, the International Commission of Jurists, the National Union of Journalists and the Media Lawyers’ Association; and in the third case, to Article 19, the Electronic Privacy Information Center and to the Equality and Human Rights Commission. 5. On 4 July 2017 the Chamber of the First Section decided to join the applications and hold an oral hearing. That hearing took place in public in the Human Rights Building, Strasbourg, on 7 November 2017. There appeared before the Court: (a) for the GovernmentMs R. Sagoo,Agent,Mr J. Eadie qc, Mr J. Milford,Counsel,Ms N. SamuelMr S. Bowden,Mr M. Anstee,Mr T. Rutherford,Ms L. Morgan, Mr B. Newman, Advisers.", "(b) for the applicantsMs D. Rose qc,Ms H. Mountfield qc,Mr M. Ryder qc,Counsel,Mr R. Mehta,Mr C. McCarthy,Mr D. Carey,Mr N. WilliamsAdvisers. 6. The Court heard addresses by Mr Eadie, Ms Rose and Ms Mountfield, as well as their replies to questions put by the President and by Judges Koskelo, Harutyunyan, Eicke, Turković and Pardalos. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A.", "Background 7. The three applications were introduced following revelations by Edward Snowden relating to the electronic surveillance programmes operated by the intelligence services of the United States of America and the United Kingdom. 8. The applicants, who are listed in the Appendix, all believed that due to the nature of their activities, their electronic communications were likely to have either been intercepted by the United Kingdom intelligence services; obtained by the United Kingdom intelligence services after being intercepted by foreign governments; and/or obtained by the United Kingdom authorities from Communications Service Providers (“CSPs”). B.", "The secret surveillance schemes 9. Internet communications are primarily carried over international sub-marine fibre optic cables operated by CSPs. Each cable may carry several “bearers”, and there are approximately 100,000 of these bearers joining up the global Internet. A single communication over the Internet is divided into “packets” (units of data) which may be transmitted separately across multiple bearers. These packets will travel via a combination of the quickest and cheapest paths, which may also depend on the location of the servers.", "Consequently, some or all of the parts of any particular communication sent from one person to another, whether within the United Kingdom or across borders, may be routed through one or more other countries if that is the optimum path for the CSPs involved. 1. Government Communications Headquarters (“GCHQ”) 10. The Edward Snowden revelations indicated that GCHQ (being one of the United Kingdom intelligence services) was running an operation, codenamed “TEMPORA”, which allowed it to tap into and store huge volumes of data drawn from bearers. 11.", "According to the March 2015 Report of the Intelligence and Security Committee of Parliament (“the ISC report” – see paragraphs 151-159 below), GCHQ is operating two major processing systems for the bulk interception of communications. The United Kingdom authorities have neither confirmed nor denied the existence of an operation codenamed TEMPORA. 12. The first of the two processing systems referred to in the ISC report is targeted at a very small percentage of bearers. As communications flow across the targeted bearers, the system compares the traffic against a list of “simple selectors”.", "These are specific identifiers (for example, an email address) relating to a known target. Any communications which match are collected; those that do not are automatically discarded. Analysts then carry out a “triage process” in relation to collected communications to determine which are of the highest intelligence value and should therefore be opened and read. In practice, only a very small proportion of the items collected under this process are opened and read by analysts. GCHQ does not have the capacity to read all communications.", "13. The second processing system is targeted at an even smaller number of bearers (a subset of those accessed by the process described in the paragraph above) which are deliberately targeted as those most likely to carry communications of intelligence interest. This second system has two stages: first, the initial application of a set of “processing rules” designed to discard material least likely to be of value; and secondly, the application of complex queries to the selected material in order to draw out those likely to be of the highest intelligence value. Those searches generate an index, and only items on that index may potentially be examined by analysts. All communications which are not on the list must be discarded.", "14. The legal framework for bulk interception in force at the relevant time is set out in detail in the “Relevant Domestic law and practice” section below. In brief, section 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraph 67 below) allows the Secretary of State to issue warrants for the “interception of external communications”, and pursuant to section 16 of RIPA (see paragraphs 78-85 below) intercepted material cannot be selected to be read, looked at or listened to, “according to a factor which is referable to an individual who is known to be for the time being in the British Islands”. 2. The United States’ National Security Agency (“NSA”) 15.", "The NSA has acknowledged the existence of two operations called PRISM and Upstream. (a) PRISM 16. PRISM is a programme through which the United States’ Government obtains intelligence material (such as communications) from Internet Service Providers (“ISPs”). Access under PRISM is specific and targeted (as opposed to a broad “data mining” capability). The United States’ administration has stated that the programme is regulated under the Foreign Intelligence Surveillance Act (“FISA”), and applications for access to material through PRISM have to be approved by the FISA Court, which is comprised of eleven senior judges.", "17. Documents from the NSA leaked by Edward Snowden suggest that GCHQ has had access to PRISM since July 2010 and has used it to generate intelligence reports. GCHQ has acknowledged that it acquired information from the United States’ which had been obtained via PRISM. (b) Upstream 18. According to the leaked documents, the Upstream programme allows the collection of content and communications data from fibre-optic cables and infrastructure owned by United States’ CSPs.", "This programme has broad access to global data, in particular that of non-US citizens, which can then be collected, stored and searched using keywords. C. Domestic proceedings in the first and second of the joined cases 19. The applicants in the first of the joined cases (application no. 58170/13) sent a pre-action protocol letter to the Government on 3 July 2013 setting out their complaints and seeking declarations that sections 1 and 3 of the Intelligence Services Act (see paragraphs 100-103 below), section 1 of the Security Services Act (see paragraph 99 below) and section 8 of RIPA (see paragraph 67 below) were incompatible with the Convention. In their reply of 26 July 2013, the Government stated that the effect of section 65(2) of RIPA was to exclude the jurisdiction of the High Court in respect of human rights complaints against the intelligence services.", "These complaints could however be raised in the Investigatory Powers Tribunal (“IPT”), a court established under RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act, which was endowed with exclusive jurisdiction to investigate any complaint that a person’s communications have been intercepted and, where interception has occurred, to examine the authority for such interception (see paragraphs 123-143 below). No further action was taken by these applicants. 20. The applicants in the second of the joined cases (application no. 62322/14) did not bring any domestic proceedings as they did not believe that they had an effective remedy for their Convention complaints.", "D. Domestic proceedings in the third of the joined cases 21. The ten human rights organisations which are the applicants in the third of the joined cases (application no. 24960/15) each lodged a complaint before the IPT between June and December 2013. They alleged that the intelligence services, the Home Secretary and the Foreign Secretary had acted in violation of Articles 8, 10, and 14 of the Convention by: (i) accessing or otherwise receiving intercepted communications and communications data from the US Government under the PRISM and Upstream programmes (“the PRISM issue”); and (ii) intercepting, inspecting and retaining their communications and their communications data under the TEMPORA programme (“the section 8(4) issue”). The applicants sought disclosure of all relevant material relied on by the intelligence services in the context of their interception activities and, in particular, all policies and guidance.", "22. On 14 February 2014 the IPT ordered that the ten cases be joined. It subsequently appointed Counsel to the Tribunal (see paragraph 142 below), whose function is to assist the IPT in whatever way it directs, including by making representations on issues in relation to which not all parties can be represented (for example, for reasons of national security). 23. In their response to the applicants’ claims, the Government adopted a “neither confirm nor deny” approach, that is to say, they declined to confirm or deny whether the applicants’ communications had actually been intercepted.", "It was therefore agreed that the IPT would determine the legal issues on the basis of assumed facts to the effect that the NSA had obtained the applicants’ communications and communications data via PRISM or Upstream and had passed them to GCHQ, where they had been retained, stored, analysed and shared; and that the applicants’ communications and communications data had been intercepted by GCHQ under the TEMPORA programme and had been retained, stored, analysed and shared. The question was whether, on these assumed facts, the interception, retention, storage and sharing of data was compatible with Articles 8 and 10, taken alone and together with Article 14 of the Convention. 1. The hearing 24. The IPT, composed of two High Court Judges (including the President), a Circuit Judge and two senior barristers, held a five-day, public hearing from 14-18 July 2014.", "The Government requested an additional closed hearing in order to enable the IPT to consider GCHQ’s unpublished – described during the public hearing as “below the waterline” – internal arrangements for processing data. The applicants objected, arguing that the holding of a closed hearing was not justified and that the failure to disclose the arrangements to them was unfair. 25. The request for a closed hearing was granted pursuant to Rule 9 of the IPT’s Rules of Procedure (see paragraph 131 below) and on 10 September 2014 a closed hearing took place, at which neither the applicants nor their representatives were present. Instead, the IPT was “assisted by the full, perceptive and neutral participation ... of Counsel to the Tribunal”, who performed the following roles: (i) identifying documents, parts of documents or gists that ought properly to be disclosed; (ii) making such submissions in favour of disclosure as were in the interests of the Claimants and open justice; and (iii) ensuring that all the relevant arguments (from the Claimants’ perspective) on the facts and the law were put before the IPT.", "26. In the closed hearing, the IPT examined the internal arrangements regulating the conduct and practice of the intelligence services. It found that it was entitled to look “below the waterline” to consider the adequacy of the applicable safeguards and whether any further information could or should be disclosed to the public in order to comply with the requirements of Articles 8 and 10. 27. On 9 October 2014 the IPT notified the applicants that it was of the view that there was some closed material which could be disclosed.", "It explained that it had invited the Government to disclose the material and that the Government had agreed to do so. The material was accordingly provided to the applicants in a note (“the 9 October disclosure”) and the parties were invited to make submissions to the IPT on the disclosed material. 28. The applicants sought information on the context and source of the disclosure but the IPT declined to provide further details. The applicants made written submissions on the disclosure.", "29. The respondents subsequently amended and amplified the disclosed material. 30. Following final disclosures made on 12 November 2014, the 9 October disclosure provided as follows: “The US Government has publicly acknowledged that the Prism system and Upstream programme ... permit the acquisition of communications to, from, or about specific tasked selectors associated with non-US persons who are reasonably believed to be located outside the United States in order to acquire foreign intelligence information. To the extent that the Intelligence Services are permitted by the US Government to make requests for material obtained under the Prism system (and/or ... pursuant to the Upstream programme), those requests may only be made for unanalysed intercepted communications (and associated communications data) acquired in this way.", "1. A request may only be made by the Intelligence Services to the government of a country or territory outside the United Kingdom for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual legal assistance agreement, if either: ... 2. Where the Intelligence Services receive intercepted communications content or communications data from the government of a country or territory outside the United Kingdom, irrespective of whether it is/they are solicited or unsolicited, whether the content is analysed or unanalysed, or whether or not the communications data are associated with the content of communications, the communications content and data are, pursuant to internal ‘arrangements’, subject to the same internal rules and safeguards as the same categories of content or data, when they are obtained directly by the Intelligence Services as a result of interception under RIPA. 3. Those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant have internal ‘arrangements’ that require a record to be created, explaining why access to the unanalysed intercepted material is required, before an authorised person is able to access such material pursuant to s.16 of RIPA.", "4. The internal ‘arrangements’ of those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant specify (or require to be determined, on a system-by-system basis) maximum retention periods for different categories of such data which reflect the nature and intrusiveness of the particular data at issue. The periods so specified (or determined) are normally no longer than 2 years, and in certain cases are significantly shorter (intelligence reports that draw on such data are treated as a separate category, and are retained for longer). Data may only be retained for longer than the applicable maximum retention period where prior authorisation has been obtained from a senior official within the particular Intelligence Service at issue on the basis that continued retention of the particular data at issue has been assessed to be necessary and proportionate (if the continued retention of any such data is thereafter assessed no longer to meet the tests of necessity and proportionality, such data are deleted). As far as possible, all retention periods are implemented by a process of automated deletion which is triggered once the applicable maximum retention period has been reached for the data at issue.", "The maximum retention periods are overseen by, and agreed with the Commissioner. As regards related communications data in particular, Sir Anthony May made a recommendation to those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s8(4) warrant, and the interim Commissioner (Sir Paul Kennedy) has recently expressed himself to be content with the implementation of that recommendation. 5. The Intelligence Services’ internal ‘arrangements’ under [the Security Services Act 1989], [the Intelligence Services Act 1994] and ss.15-16 of RIPA are periodically reviewed to ensure that they remain up-to-date and effective. Further, the Intelligence Services are henceforth content to consider, during the course of such periodic reviews, whether more of those internal arrangements might safely and usefully be put into the public domain (for example, by way of inclusion in a relevant statutory Code of Practice).” 2.", "The IPT’s first judgment of 5 December 2014 31. The IPT issued its first judgment on 5 December 2014. The judgment addressed the arrangements then in place for intercepting and sharing data, making extensive reference throughout to this Court’s case-law. (a) The PRISM issue 32. The IPT accepted that the PRISM issue engaged Article 8 of the Convention, albeit at a “lower level” than the regime under consideration in Weber and Saravia v. Germany (dec.), no.", "54934/00, ECHR 2006‑XI. As a consequence, there would need to be compliance by the authorities involved in processing the data with the requirements of Article 8, particularly in relation to storage, sharing, retention and destruction. In the IPT’s view, in order for the interference to be considered “in accordance with the law”, there could not be unfettered discretion for executive action; rather, the nature of the rules had to be clear and the ambit of the rules had – in so far as possible – to be in the public domain (citing Bykov v. Russia [GC], no. 4378/02, §§ 76 and 78, 10 March 2009 and Malone v. the United Kingdom, 2 August 1984, Series A no. 82).", "However, it considered it plain that in the field of national security, much less was required to be put in the public domain and the degree of foreseeability required by Article 8 had to be reduced, otherwise the whole purpose of the steps taken to protect national security would be at risk (citing Leander v. Sweden, 26 March 1987, § 51, Series A no. 116). 33. The IPT continued: “41. We consider that what is required is a sufficient signposting of the rules or arrangements insofar as they are not disclosed ... We are satisfied that in the field of intelligence sharing it is not to be expected that rules need to be contained in statute (Weber) or even in a code (as was required by virtue of the Court’s conclusion in Liberty v. [the United Kingdom, no.", "58243/00, 1 July 2008]). It is in our judgment sufficient that: i) Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it (as per Malone ...). ii) They are subject to proper oversight.” 34. The IPT noted that arrangements for information sharing were provided for in the statutory framework set out in the Security Services Act 1989 (“the SSA” – see paragraphs 98-99 below) and the Intelligence Services Act 1994 (“the ISA” – see paragraphs 100-103 below). It further referred to a witness statement of Charles Farr, the Director-General of the Office for Security and Counter Terrorism (“OSCT”) at the Home Office, in which he explained that the statutory framework set out in those Acts was underpinned by detailed internal guidance, including arrangements for securing that the services only obtained the information necessary for the proper discharge of their functions.", "He further indicated that staff received mandatory training on the legal and policy framework in which they operated, including clear instructions on the need for strict adherence to the law and internal guidance. Finally, he stated that the full details of the arrangements were confidential since they could not be published safely without undermining the interests of national security. 35. The IPT therefore acknowledged that as the arrangements were not made known to the public, even in summary form, they were not accessible. However, the IPT considered it significant that the arrangements were subject to oversight and investigation by the Intelligence and Security Committee of Parliament and the independent Interception of Communications Commissioner.", "Furthermore, it itself was in a position to provide oversight, having access to all secret information, and being able to adjourn into closed hearing to assess whether the arrangements referred to by Mr Farr existed and were capable of giving the individual protection against arbitrary interference. 36. In so far as the claimants challenged the IPT’s decision to look “below the waterline” when assessing the adequacy of the safeguards, the IPT considered itself entitled to look at the internal arrangements in order to be satisfied that there were adequate safeguards and that what was described as “above the waterline” was accurate and gave a sufficiently clear signposting as to what was “below the waterline” without disclosing the detail of it. In this regard, the IPT did not accept that the holding of a closed hearing, as had been carried out in the applicants’ case, was unfair. It accorded with the statutory procedure, gave the fullest and most transparent opportunity for hearing full arguments inter partes on hypothetical and actual facts with as much as possible heard in public, and protected the public interest and national security.", "37. Having considered the arrangements “below the waterline”, the IPT was satisfied that the 9 October disclosure (as subsequently amended) provided a clear and accurate summary of that part of the evidence given in the closed hearing which could and should be disclosed and that the rest of the evidence given in closed hearing was too sensitive for disclosure without risk to national security or to the “neither confirm nor deny” principle. It was further satisfied that it was clear that the preconditions for requesting information from the United States Government were either the existence of a section 8(1) warrant, or the existence of a section 8(4) warrant within whose ambit the proposed target’s communications fell, together, if the individual was known to be in the British Islands, with a section 16(3) modification (see paragraph 80 below). In other words, any request pursuant to PRISM or Upstream in respect of intercept or communications data would be subject to the RIPA regime, unless it fell within the wholly exceptional scenario outlined in 1(b) of the material disclosed after the first hearing. However, a 1(b) request had never occurred.", "38. The IPT nevertheless identified the following “matter of concern”: “Although it is the case that any request for, or receipt of, intercept or communications data pursuant to Prism and/or Upstream is ordinarily subject to the same safeguards as in a case where intercept or communication data are obtained directly by the Respondents, if there were a 1(b) request, albeit that such request must go to the Secretary of State, and that any material so obtained must be dealt with pursuant to RIPA, there is the possibility that the s.16 protection might not apply. As already indicated, no 1(b) request has in fact ever occurred, and there has thus been no problem hitherto. We are however satisfied that there ought to be introduced a procedure whereby any such request, if it be made, when referred to the Secretary of State, must address the issue of s.16(3).” 39. However, subject to this caveat, the IPT reached the following conclusions: “(i) Having considered the arrangements below the waterline, as described in this judgment, we are satisfied that there are adequate arrangements in place for the purpose of ensuring compliance with the statutory framework and with Articles 8 and 10 of the Convention, so far as the receipt of intercept from Prism and/or Upstream is concerned.", "(ii) This is of course of itself not sufficient, because the arrangements must be sufficiently accessible to the public. We are satisfied that they are sufficiently signposted by virtue of the statutory framework to which we have referred and the Statements of the ISC and the Commissioner quoted above, and as now, after the two closed hearings that we have held, publicly disclosed by the Respondents and recorded in this judgment. (iii) These arrangements are subject to oversight. (iv) The scope of the discretion conferred on the Respondents to receive and handle intercepted material and communications data and (subject to the s.8(4) issues referred to below) the manner of its exercise, are accordingly (and consistent with Bykov - see paragraph 37 above) accessible with sufficient clarity to give the individual adequate protection against arbitrary interference.” 40. Finally, the IPT addressed an argument raised by Amnesty International only; namely, that the United Kingdom owed a positive obligation under Article 8 of the Convention to prevent or forestall the United States from intercepting communications including an obligation not to acquiesce in such interception by receiving its product.", "However, the IPT, citing M. and Others v. Italy and Bulgaria, no. 40020/03, § 127, 31 July 2012, noted that “the Convention organs have repeatedly stated that the Convention does not contain a right which requires a High Contracting Party to exercise diplomatic protection, or espouse an applicant’s complaints under international law, or otherwise to intervene with the authorities of another state on his or her behalf”. The IPT therefore rejected this submission. (b) The section 8(4) issue 41. The IPT formulated four questions to be decided in order to determine whether the section 8(4) regime (which provided the legal framework for the bulk interception of external communications – see paragraph 67 below) was compatible with the Convention: “(1) Is the difficulty of determining the difference between external and internal communications ... such as to cause the s.8(4) regime not to be in accordance with law contrary to Article 8(2)?", "(2) Insofar as s.16 of RIPA is required as a safeguard in order to render the interference with Article 8 in accordance with law, is it a sufficient one? (3) Is the regime, whether with or without s.16, sufficiently compliant with the Weber requirements, insofar as such is necessary in order to be in accordance with law? (4) Is s. 16(2) indirectly discriminatory contrary to Article 14 of the Convention, and, if so, can it be justified?” 42. In relation to the first question, the applicants had contended that following the “sea-change in technology since 2000” substantially more communications were now external, and as a result the internal/external distinction in section 8(4) was no longer “fit for purpose”. While the IPT accepted that the changes in technology had been substantial, and that it was impossible to differentiate at interception stage between external and internal communications, it found that the differences in view as to the precise definition of “external communications” did not per se render the section 8(4) regime incompatible with Article 8 § 2.", "In this regard, it considered that the difficulty in distinguishing between “internal” and “external” communications had existed since the enactment of RIPA and the changes in technology had not materially added to the quantity or proportion of communications which could or could not be differentiated as being external or internal at the time of interception. At worst, they had “accelerated the process of more things in the world on a true analysis being external than internal”. In any case the distinction was only relevant at interception stage. The “heavy lifting” was done by section 16 of RIPA, which prevented intercepted material being selected to be read, looked at or listened to “according to a factor which is referable to an individual who is known to be for the time being in the British Islands” (see paragraphs 78-80 below). Furthermore, all communications intercepted under a section 8(4) warrant could only be considered for examination by reference to that section.", "43. In respect of the second question, the IPT held that the section 16 safeguards, which applied only to intercept material and not to related communications data, were sufficient. Although it concluded that the Weber criteria also extended to communications data, it considered that there was adequate protection or safeguards by reference to section 15 (see paragraphs 72-77 below). In addition, insofar as section 16 offered greater protection for communications content than for communications data, the difference was justified and proportionate because communications data was necessary to identify individuals whose intercepted material was protected by section 16 (that is, individuals known to be in the British Islands). 44.", "Turning to the third question, the IPT concluded that the section 8(4) regime was sufficiently compliant with the Weber criteria and was in any event “in accordance with the law”. With regard to the first and second requirements, it considered that the reference to “national security” was sufficiently clear (citing Esbester v. the United Kingdom (dec.), no. 18601/91, 2 April 1993 and Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010); the absence of targeting at the interception stage was acceptable and inevitable, as it had been in Weber; on their face, the provisions of paragraph 5.2 of the Interception of Communications Code of Practice, together with paragraphs 2.4, 2.5, 5.3, 5.4, 5.5 and 5.6 were satisfactory; there was no call for search words to be included in an application for a warrant or in the warrant itself, as this would unnecessarily undermine and limit the operation of the warrant and might in any event be entirely unrealistic; and there was no requirement for the warrant to be judicially authorised. 45.", "In considering the third, fourth, fifth and sixth of the Weber criteria, the IPT had regard to the safeguards in sections 15 and 16 of RIPA, the Interception of Communications Code of Practice, and the “below the waterline arrangements”. It did not consider it necessary that the precise details of all the safeguards should be published or contained in either statute or code of practice. Particularly in the field of national security, undisclosed administrative arrangements, which by definition could be changed by the Executive without reference to Parliament, could be taken into account, provided that what is disclosed indicated the scope of the discretion and the manner of its exercise. This was particularly so when, as was the case here, the Code of Practice itself referred to the arrangements, and there was a system of oversight (being the Commissioner, the IPT itself, and the ISC) which ensured that these arrangements were kept under review. The IPT was satisfied that, as a result of what it had heard at the closed hearing and the 9 October disclosure as amended, there was no large databank of communications data being built up and that there were adequate arrangements in respect of the duration of the retention of data and its destruction.", "As with the PRISM issue, the IPT considered that the section 8(4) arrangements were sufficiently signposted in statute, in the Code of Practice, in the Interception of Communications Commissioner’s reports and, now, in its own judgment. 46. As regards the fourth and final question, the IPT did not make any finding as to whether there was in fact indirect discrimination on grounds of national origin as a result of the different regimes applicable to individuals located in the British Islands and those located outside, since it considered that any indirect discrimination was sufficiently justified on the grounds that it was harder to investigate terrorist and criminal threats from abroad. Given that the purpose of accessing external communications was primarily to obtain information relating to those abroad, the consequence of eliminating the distinction would be the need to obtain a certificate under section 16(3) of RIPA (which exceptionally allowed access to material concerning persons within the British Islands intercepted under a section 8(4) warrant – see paragraph 80 below) in almost every case, which would radically undermine the efficacy of the section 8(4) regime. 47.", "Finally, in respect of Article 10, the applicants argued that its protection applied to investigatory NGOs as to journalists. Amnesty initially alleged before the IPT that there were likely to be no adequate arrangements for material protected by legal professional privilege, a complaint which was subsequently “hived off” to be dealt with in the Belhadj case (see paragraphs 92-94 below), to which Amnesty was joined as an additional claimant. No similar argument was made in respect of NGO confidence until 17 November 2014 (the first and second open hearings having taken place in July and October 2014). As the IPT considered that this argument could have been raised at any time, in its judgment it had been raised “far too late” to be incorporated into the ambit of the proceedings. 48.", "With regard to the remaining Article 10 complaints, the IPT noted that there was no separate argument over and above that arising in respect of Article 8. Although the IPT observed that there might be a special argument relating to the need for judicial pre-authorisation of a warrant (referring to Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010), it emphasised that the applicants’ case did not concern targeted surveillance of journalists or non-governmental organisations. In any case, in the context of untargeted monitoring via a section 8(4) warrant, it was “clearly impossible” to anticipate a judicial pre-authorisation prior to the warrant limited to what might turn out to impact upon Article 10. Although the IPT accepted that an issue might arise in the event that, in the course of examination of the contents, some question of journalistic confidence arose, it observed that there were additional safeguards in the Code of Practice in relation to treatment of such material.", "49. Following the publication of the judgment, the parties were invited to make submissions on whether, prior to the disclosures made to the IPT, the legal regime in place in respect of the PRISM issue complied with Articles 8 and 10 and on the proportionality and lawfulness of any alleged interception of their communications. The IPT did not see any need for further submissions on the proportionality of the section 8(4) regime as a whole. 3. The IPT’s second judgment of 6 February 2015 50.", "In its second judgment of 6 February 2015, the IPT considered whether, prior to its December 2014 judgment, the PRISM or Upstream arrangements breached Article 8 and/or 10 of the Convention. 51. It agreed that it was only by reference to the 9 October disclosure as amended that it was satisfied the current regime was “in accordance with the law”. The IPT was of the view that without the disclosures made, there would not have been adequate signposting, as was required under Articles 8 and 10. It therefore made a declaration that prior to the disclosures made: “23.", "... [T]he regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and/or ... Upstream, contravened Articles 8 or 10 ECHR, but now complies.” 4. The IPT’s third judgment of 22 June 2015 as amended by its 1 July 2015 letter 52. The third judgment of the IPT, published on 22 June 2015, determined whether the applicants’ communications obtained under PRISM or Upstream had been solicited, received, stored or transmitted by the United Kingdom authorities in contravention of Articles 8 and/or 10 of the Convention; and whether the applicants’ communications had been intercepted, viewed, stored or transmitted by the United Kingdom authorities so as to amount to unlawful conduct or in contravention of Articles 8 and/or 10. 53. The IPT made no determination in favour of eight of the ten applicants.", "In line with its usual practice where it did not find in favour of the claimant, it did not confirm whether or not their communications had been intercepted. However, in relation to two applicants the IPT made determinations. The identity of one of the organisations was wrongly noted in the judgment and the error was corrected by the IPT’s letter of 1 July 2015. 54. In respect of Amnesty International, the IPT found that email communications had been lawfully and proportionately intercepted and accessed pursuant to section 8(4) of RIPA but that the time-limit for retention permitted under the internal policies of GCHQ had been overlooked and the material had therefore been retained for longer than permitted.", "However, the IPT was satisfied that the material had not been accessed after the expiry of the relevant retention time-limit and that the breach could be characterised as a technical one. It amounted nonetheless to a breach of Article 8 and GCHQ was ordered to destroy any of the communications which had been retained for longer than the relevant period and to deliver one hard copy of the documents within seven days to the Interception of Communications Commissioner to retain for five years in case they were needed for any further legal proceedings. GCHQ was also ordered to provide a closed report within fourteen days confirming the destruction of the documents. No award of compensation was made. 55.", "In respect of the Legal Resources Centre, the IPT found that communications from an email address associated with the applicant had been intercepted and selected for examination under a section 8(4) warrant. Although it was satisfied the interception was lawful and proportionate and that selection for examination was proportionate, the IPT found that the internal procedure for selection was, in error, not followed. There had therefore been a breach of the Legal Resources Centre’s Article 8 rights. However, the IPT was satisfied that no use was made of the material and that no record had been retained so the applicant had not suffered material detriment, damage or prejudice. Its determination therefore constituted just satisfaction and no compensation was awarded.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. The interception of communications 1. Warrants: general 56. Section 1(1) of RIPA renders unlawful the interception of any communication in the course of its transmission by means of a public postal service or a public telecommunication system unless it takes place in accordance with a warrant under section 5 (“intercept warrant”).", "57. Section 5(2) allows the Secretary of State to authorise an intercept warrant if he believes: that it is necessary for the reasons set out in section 5(3), namely that it is in the interests of national security, for the purpose of preventing or detecting serious crime, or for safeguarding the economic well-being of the United Kingdom; and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. In assessing necessity and proportionality, account should be taken of whether the information sought under the warrant could reasonably be obtained by other means. 58. Section 81(2)(b) of RIPA defines “serious crime” as crime which satisfies one of the following criteria: “(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more; (b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.” 59.", "Section 81(5) provides: “For the purposes of this Act detecting crime shall be taken to include– (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and (b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ...” 60. Section 6 provides that in respect of the intelligence services, only the Director General of MI5, the Chief of MI6 and the Director of GCHQ may apply for an intercept warrant. 61. There are two types of intercept warrant to which sections 5 and 6 apply: a targeted warrant as provided for by section 8(1); and an untargeted warrant as provided for by section 8(4). 62.", "By virtue of section 9 of RIPA, a warrant issued in the interests of national security or for safeguarding the economic well-being of the United Kingdom shall cease to have effect at the end of six months, and a warrant issued for the purpose of detecting serious crime shall cease to have effect after three months. At any time before the end of those periods, the Secretary of State may renew the warrant (for periods of six and three months respectively) if he believes that the warrant continues to be necessary on grounds falling within section 5(3). The Secretary of State shall cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section 5(3). 63. Pursuant to section 5(6), the conduct authorised by an interception warrant shall be taken to include the interception of communications not identified by the warrant if necessary to do what is expressly authorised or required by the warrant; and the obtaining of related communications data.", "64. Section 21(4) defines “communications data” as “(a) any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted; (b) any information which includes none of the contents of a communication (apart from any information falling within paragraph (a)) and is about the use made by any person— i. of any postal service or telecommunications service; or ii. in connection with the provision to or use by any person of any telecommunications service, of any part of a telecommunication system; (c) any information not falling within paragraph (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service.” 65. The March 2015 Acquisition and Disclosure of Communications Data Code of Practice refers to these three categories as “traffic data”, “service use information”, and “subscriber information”. Section 21(6) of RIPA further defines “traffic data” as data which identifies the person, apparatus, location or address to or from which a communication is transmitted, and information about a computer file or program accessed or run in the course of sending or receiving a communication.", "66. Section 20 defines “related communications data”, in relation to a communication intercepted in the course of its transmission by means of a postal service or telecommunication system, as communications data “obtained by, or in connection with, the interception”; and which “relates to the communication or to the sender or recipient, or intended recipient, of the communication”. 2. Warrants: section 8(4) (a) Authorisation 67. “Bulk interception” of communications is carried out pursuant to a section 8(4) warrant.", "Section 8(4) and (5) of RIPA allows the Secretary of State to issue a warrant for “the interception of external communications in the course of their transmission by means of a telecommunication system”. 68. At the time of issuing a section 8(4) warrant, the Secretary of State must also issue a certificate setting out a description of the intercepted material which he considers it necessary to examine, and stating that he considers the examination of that material to be necessary for the reasons set out in section 5(3) (that is, that it is necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or for safeguarding the economic well-being of the United Kingdom). (b) “External” communications 69. Section 20 defines “external communication” as “a communication sent or received outside the British Islands”.", "70. In the course of the Liberty proceedings, Charles Farr, the Director General of the OSCT, indicated that two people in the United Kingdom who email each other are engaging in “internal communication” even if the email service was housed on a server in the United States of America; however, that communication may be intercepted as a “by-catch” of a warrant targeting external communications. On the other hand, a person in the United Kingdom who communicates with a search engine overseas is engaging in an external communication, as is a person in the United Kingdom who posts a public message (such as a tweet or Facebook status update), unless all the recipients of that message are in the British Islands. 71. Giving evidence to the Intelligence and Security Committee of Parliament in October 2014, the Secretary of State for the Foreign and Commonwealth considered that: “• In terms of an email, if one or both of the sender or recipient is overseas then this would be an external communication.", "• In terms of browsing the Internet, if an individual reads the Washington Post’s website, then they have ‘communicated’ with a web server located overseas, and that is therefore an external communication. • In terms of social media, if an individual posts something on Facebook, because the web server is based overseas, this would be treated as an external communication. • In terms of cloud storage (for example, files uploaded to Dropbox), these would be treated as external communications, because they have been sent to a web server overseas.” 3. Specific safeguards under RIPA (a) Section 15 72. Pursuant to Section 15(1), it is the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements are in force as he considers necessary for securing that the requirements of subsections (2) and (3) are satisfied in relation to the intercepted material and any related communications data; and, in the case of warrants in relation to which there are section 8(4) certificates, that the requirements of section 16 are also satisfied.", "73. Section 15(2) provides: “The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following– (a) the number of persons to whom any of the material or data is disclosed or otherwise made available, (b) the extent to which any of the material or data is disclosed or otherwise made available, (c) the extent to which any of the material or data is copied, and (d) the number of copies that are made, is limited to the minimum that is necessary for the authorised purposes.” 74. Section 15(3) provides: “The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes.” 75. Pursuant to section 15(4), something is necessary for the authorised purposes if, and only if, it continues to be, or is likely to become, necessary as mentioned in section 5(3) of the Act (that is, it is necessary in the interests of national security, for the purpose of preventing or detecting serious crime; for the purpose of safeguarding the economic well-being of the United Kingdom; or for the purpose of giving effect to the provisions of any international mutual assistance agreement); it is necessary for facilitating the carrying out of any of the interception functions of the Secretary of State; it is necessary for facilitating the carrying out of any functions of the Interception of Communications Commissioner or of the IPT; it is necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution; or it is necessary for the performance of any duty imposed on any person under public records legislation. 76.", "Section 15(5) requires the arrangements in place to secure compliance with section 15(2) to include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner. 77. Pursuant to section 15(6), the arrangements to which section 15(1) refers are not required to secure that the requirements of section 15(2) and (3) are satisfied in so far as they relate to any of the intercepted material or related communications data, or any copy of any such material or data, possession of which has been surrendered to any authorities of a country or territory outside the United Kingdom. However, such arrangements are required to secure, in the case of every such warrant, that possession of the intercepted material and data and of copies of the material or data is surrendered to authorities of a country or territory outside the United Kingdom only if the requirements of section 15(7) are satisfied. Section 15(7) provides: “The requirements of this subsection are satisfied in the case of a warrant if it appears to the Secretary of State– (a) that requirements corresponding to those of subsections (2) and (3) will apply, to such extent (if any) as the Secretary of State thinks fit, in relation to any of the intercepted material or related communications data possession of which, or of any copy of which, is surrendered to the authorities in question; and (b) that restrictions are in force which would prevent, to such extent (if any) as the Secretary of State thinks fit, the doing of anything in, for the purposes of or in connection with any proceedings outside the United Kingdom which would result in such a disclosure as, by virtue of section 17, could not be made in the United Kingdom.” (b) Section 16 78.", "Section 16 sets out additional safeguards in relation to the interception of “external” communications under section 8(4) warrants. Section 16(1) requires that intercepted material may only be read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant if and to the extent that it has been certified as material the examination of which is necessary as mentioned in section 5(3) of the Act; and falls within section 16(2). Section 20 defines “intercepted material” as the contents of any communications intercepted by an interception to which the warrant relates. 79. Section 16(2) provides: “Subject to subsections (3) and (4), intercepted material falls within this subsection so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which– (a) is referable to an individual who is known to be for the time being in the British Islands; and (b) has as its purpose, or one of its purposes, the identification of material contained in communications sent by him, or intended for him.” 80.", "Pursuant to section 16(3), intercepted material falls within section 16(2), notwithstanding that it is selected by reference to one of the factors mentioned in that subsection, if it is certified by the Secretary of State for the purposes of section 8(4) that the examination of material selected according to factors referable to the individual in question is necessary as mentioned in subsection 5(3) of the Act; and the material relates only to communications sent during a period specified in the certificate that is no longer than the permitted maximum. 81. The “permitted maximum” is defined in section 16(3A) as follows: “(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, six months; and (b) in any other case, three months.” 82. Pursuant to section 16(4), intercepted material also falls within section 16(2), even if it is selected by reference to one of the factors mentioned in that subsection, if the person to whom the warrant is addressed believes, on reasonable grounds, that the circumstances are such that the material would fall within that subsection; or the conditions set out in section 16(5) are satisfied in relation to the selection of the material. 83.", "Section 16(5) provides: “Those conditions are satisfied in relation to the selection of intercepted material if – (a) it has appeared to the person to whom the warrant is addressed that there has been such a relevant change of circumstances as, but for subsection (4)(b), would prevent the intercepted material from falling within subsection (2); (b) since it first so appeared, a written authorisation to read, look at or listen to the material has been given by a senior official; and (c) the selection is made before the end of the permitted period.” 84. Pursuant to section 16(5A), the “permitted period” means: “(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, the period ending with the end of the fifth working day after it first appeared as mentioned in subsection (5)(a) to the person to whom the warrant is addressed; and (b) in any other case, the period ending with the end of the first working day after it first so appeared to that person.” 85. Section 16(6) explains that a “relevant change of circumstances” means that it appears that either the individual in question has entered the British Islands; or that a belief by the person to whom the warrant is addressed in the individual’s presence outside the British Islands was in fact mistaken. 86. Giving evidence to the Intelligence and Security Committee of Parliament in October 2014, the Secretary of State for the Foreign and Commonwealth explained that: “When an analyst selects communications that have been intercepted under the authority of an 8(4) warrant for examination, it does not matter what form of communication an individual uses, or whether his other communications are stored on a dedicated mail server or in cloud storage physically located in the UK, the US or anywhere else (and in practice the individual user of cloud services will not know where it is stored).", "If he or she is known to be in the British Islands it is not permissible to search for his or her communications by use of his or her name, e-mail address or any other personal identifier.” 4. The Interception of Communications Code of Practice 87. Section 71 of RIPA provides for the adoption of codes of practice by the Secretary of State in relation to the exercise and performance of his powers and duties under the Act. Draft codes of practice must be laid before Parliament and are public documents. They can only enter into force in accordance with an order of the Secretary of State.", "The Secretary of State can only make such an order if a draft of the order has been laid before Parliament and approved by a resolution of each House. 88. Under section 72(1) of RIPA, a person exercising or performing any power or duty relating to interception of communications must have regard to the relevant provisions of a code of practice. The provisions of a code of practice may, in appropriate circumstances, be taken into account by courts and tribunals under section 72(4) RIPA. 89.", "The Interception of Communication Code of Practice (“the IC Code”) was issued pursuant to section 71 of RIPA. The IC Code currently in force was issued in 2016. 90. Insofar as relevant, the IC Code provides: “3.2. There are a limited number of persons who can make an application for an interception warrant, or an application can be made on their behalf.", "These are: 3.3. Any application made on behalf of one of the above must be made by a person holding office under the Crown. 3.4. All interception warrants are issued by the Secretary of State. Even where the urgency procedure is followed, the Secretary of State personally authorises the warrant, although it is signed by a senior official.", "Necessity and proportionality 3.5. Obtaining a warrant under RIPA will only ensure that the interception authorised is a justifiable interference with an individual’s rights under Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) if it is necessary and proportionate for the interception to take place. RIPA recognises this by first requiring that the Secretary of State believes that the authorisation is necessary for one or more of the following statutory grounds: 3.6. These purposes are set out in section 5(3) of RIPA. The Secretary of State must also believe that the interception is proportionate to what is sought to be achieved by that conduct.", "Any assessment of proportionality involves balancing the seriousness of the intrusion into the privacy or property of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative, operational or capability terms. The warrant will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that there is a potential threat to national security (for example) may not alone render the most intrusive actions proportionate. No interference should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.", "3.7. The following elements of proportionality should therefore be considered: ... Duration of interception warrants 3.18. Interception warrants issued on serious crime grounds are valid for an initial period of three months. Interception warrants issued on national security/economic well-being of the UK grounds are valid for an initial period of six months.", "A warrant issued under the urgency procedure (on any grounds) is valid for five working days following the date of issue unless renewed by the Secretary of State. 3.19. Upon renewal, warrants issued on serious crime grounds are valid for a further period of three months. Warrants renewed on national security/economic well-being of the UK grounds are valid for a further period of six months. These dates run from the date on the renewal instrument.", "3.20. Where modifications to an interception warrant are made, the warrant expiry date remains unchanged. However, where the modification takes place under the urgency provisions, the modification instrument expires after five working days following the date of issue, unless it is renewed in line with the routine procedure. 3.21. Where a change in circumstance leads the intercepting agency to consider it no longer necessary, proportionate or practicable for a warrant to be in force, the agency must make a recommendation to the Secretary of State that it should be cancelled with immediate effect.", "... 4. SPECIAL RULES ON INTERCEPTION WITH A WARRANT Collateral intrusion 4.1. Consideration should be given to any interference with the privacy of individuals who are not the subject of the intended interception, especially where communications relating to religious, medical, journalistic or legally privileged material may be involved, or where communications between a Member of Parliament and another person on constituency business may be involved or communications between a Member of Parliament and a whistle-blower. An application for an interception warrant should state whether the interception is likely to give rise to a degree of collateral infringement of privacy. A person applying for an interception warrant must also consider measures, including the use of automated systems, to reduce the extent of collateral intrusion.", "Where it is possible to do so, the application should specify those measures. These circumstances and measures will be taken into account by the Secretary of State when considering a warrant application made under section 8(1) of RIPA. Should an interception operation reach the point where individuals other than the subject of the authorisation are identified as investigative targets in their own right, consideration should be given to applying for separate warrants covering those individuals. Confidential information 4.2. Particular consideration should also be given in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved.", "This includes where the communications relate to legally privileged material; where confidential journalistic material may be involved; where interception might involve communications between a medical professional or Minister of Religion and an individual relating to the latter’s health or spiritual welfare; or where communications between a Member of Parliament and another person on constituency business may be involved. 4.3. Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking. See also paragraphs 4.26 and 4.28 – 4.31 for additional safeguards that should be applied in respect of confidential journalistic material. ... Communications involving confidential journalistic material, confidential personal information and communications between a Member of Parliament and another person on constituency business 4.26.", "Particular consideration must also be given to the interception of communications that involve confidential journalistic material, confidential personal information, or communications between a Member of Parliament and another person on constituency business. Confidential journalistic material is explained at paragraph 4.3. Confidential personal information is information held in confidence concerning an individual (whether living or dead) who can be identified from it, and the material in question relates to his or her physical or mental health or to spiritual counselling. Such information can include both oral and written communications. Such information as described above is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence, or is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation.", "For example, confidential personal information might include consultations between a health professional and a patient, or information from a patient’s medical records. ... 4.28. Where the intention is to acquire confidential personal information, the reasons should be clearly documented and the specific necessity and proportionality of doing so should be carefully considered. If the acquisition of confidential personal information is likely but not intended, any possible mitigation steps should be considered and, if none is available, consideration should be given to whether special handling arrangements are required within the intercepting agency. 4.29.", "Material which has been identified as confidential information should be retained only where it is necessary and proportionate to do so for one or more of the authorised purposes set out in section 15(4). It must be securely destroyed when its retention is no longer needed for those purposes. If such information is retained, there must be adequate information management systems in place to ensure that continued retention remains necessary and proportionate for the authorised statutory purposes. 4.30. Where confidential information is retained or disseminated to an outside body, reasonable steps should be taken to mark the information as confidential.", "Where there is any doubt as to the lawfulness of the proposed handling or dissemination of confidential information, advice should be sought from a legal adviser within the relevant intercepting agency and before any further dissemination of the material takes place. 4.31. Any case where confidential information is retained should be notified to the Interception of Communications Commissioner as soon as reasonably practicable, as agreed with the Commissioner. Any material which has been retained should be made available to the Commissioner on request. 4.32.", "The safeguards set out in paragraphs 4.28 – 4.31 also apply to any section 8(4) material (see chapter 6) which is selected for examination and which constitutes confidential information. ... 6. INTERCEPTION WARRANTS (SECTION 8(4)) 6.1. This section applies to the interception of external communications by means of a warrant complying with section 8(4) of RIPA. 6.2.", "In contrast to section 8(1), a section 8(4) warrant instrument need not name or describe the interception subject or a set of premises in relation to which the interception is to take place. Neither does section 8(4) impose an express limit on the number of external communications which may be intercepted. For example, if the requirements of sections 8(4) and (5) are met, then the interception of all communications transmitted on a particular route or cable, or carried by a particular CSP, could, in principle, be lawfully authorised. This reflects the fact that section 8(4) interception is an intelligence gathering capability, whereas section 8(1) interception is primarily an investigative tool that is used once a particular subject for interception has been identified. 6.3.", "Responsibility for the issuing of interception warrants under section 8(4) of RIPA rests with the Secretary of State. When the Secretary of State issues a warrant of this kind, it must be accompanied by a certificate. The certificate ensures that a selection process is applied to the intercepted material so that only material described in the certificate is made available for human examination. If the intercepted material cannot be selected to be read, looked at or listened to with due regard to proportionality and the terms of the certificate, then it cannot be read, looked at or listened to by anyone. Section 8(4) interception in practice 6.4.", "A section 8(4) warrant authorises the interception of external communications. Where a section 8(4) warrant results in the acquisition of large volumes of communications, the intercepting agency will ordinarily apply a filtering process to automatically discard communications that are unlikely to be of intelligence value. Authorised persons within the intercepting agency may then apply search criteria to select communications that are likely to be of intelligence value in accordance with the terms of the Secretary of State’s certificate. Before a particular communication may be accessed by an authorised person within the intercepting agency, the person must provide an explanation of why it is necessary for one of the reasons set out in the certificate accompanying the warrant issued by the Secretary of State, and why it is proportionate in the particular circumstances. This process is subject to internal audit and external oversight by the Interception of Communications Commissioner.", "Where the Secretary of State is satisfied that it is necessary, he or she may authorise the selection of communications of an individual who is known to be in the British Islands. In the absence of such an authorisation, an authorised person must not select such communications. Definition of external communications 6.5. External communications are defined by RIPA to be those which are sent or received outside the British Islands. They include those which are both sent and received outside the British Islands, whether or not they pass through the British Islands in the course of their transmission.", "They do not include communications both sent and received in the British Islands, even if they pass outside the British Islands en route. For example, an email from a person in London to a person in Birmingham will be an internal, not external communication for the purposes of section 20 of RIPA, whether or not it is routed via IP addresses outside the British Islands, because the sender and intended recipient are within the British Islands. Intercepting non-external communications under section 8(4) warrants 6.6. Section 5(6)(a) of RIPA makes clear that the conduct authorised by a section 8(4) warrant may, in principle, include the interception of communications which are not external communications to the extent this is necessary in order to intercept the external communications to which the warrant relates. 6.7.", "When conducting interception under a section 8(4) warrant, an intercepting agency must use its knowledge of the way in which international communications are routed, combined with regular surveys of relevant communications links, to identify those individual communications bearers that are most likely to contain external communications that will meet the descriptions of material certified by the Secretary of State under section 8(4). It must also conduct the interception in ways that limit the collection of non-external communications to the minimum level compatible with the objective of intercepting wanted external communications. Application for a section 8(4) warrant 6.8. An application for a warrant is made to the Secretary of State. Interception warrants, when issued, are addressed to the person who submitted the application.", "The purpose of such a warrant will typically reflect one or more of the intelligence priorities set by the National Security Council (NSC). 6.9. Prior to submission, each application is subject to a review within the agency making the application. This involves scrutiny by more than one official, who will consider whether the application is for a purpose falling within section 5(3) of RIPA and whether the interception proposed is both necessary and proportionate. 6.10.", "Each application, a copy of which must be retained by the applicant, should contain the following information:  Description of the communications to be intercepted, details of the CSP(s) and an assessment of the feasibility of the operation where this is relevant; and  Description of the conduct to be authorised, which must be restricted to the interception of external communications, or the conduct (including the interception of other communications not specifically identified by the warrant as foreseen under section 5(6)(a) of RIPA) it is necessary to undertake in order to carry out what is authorised or required by the warrant, and the obtaining of related communications data. Authorisation of a section 8(4) warrant 6.11. Before issuing a warrant under section 8(4), the Secretary of State must believe the warrant is necessary: 6.12. The power to issue an interception warrant for the purpose of safeguarding the economic well-being of the UK (as provided for by section 5(3)(c) of RIPA), may only be exercised where it appears to the Secretary of State that the circumstances are relevant to the interests of national security. The Secretary of State will not issue a warrant on section 5(3)(c) grounds if a direct link between the economic well-being of the UK and national security is not established.", "Any application for a warrant on section 5(3)(c) grounds should therefore identify the circumstances that are relevant to the interests of national security. 6.13. The Secretary of State must also consider that the conduct authorised by the warrant is proportionate to what it seeks to achieve (section 5(2)(b)). In considering necessity and proportionality, the Secretary of State must take into account whether the information sought could reasonably be obtained by other means (section 5(4)). 6.14.", "When the Secretary of State issues a warrant of this kind, it must be accompanied by a certificate in which the Secretary of State certifies that he or she considers examination of the intercepted material to be necessary for one or more of the section 5(3) purposes. The purpose of the statutory certificate is to ensure that a selection process is applied to intercepted material so that only material described in the certificate is made available for human examination. Any certificate must broadly reflect the “Priorities for Intelligence Collection” set by the NSC for the guidance of the intelligence agencies. For example, a certificate might provide for the examination of material providing intelligence on terrorism (as defined in the Terrorism Act 2000) or on controlled drugs (as defined by the Misuse of Drugs Act 1971). The Interception of Communications Commissioner must review any changes to the descriptions of material specified in a certificate.", "6.15. The Secretary of State has a duty to ensure that arrangements are in force for securing that only that material which has been certified as necessary for examination for a section 5(3) purpose, and which meets the conditions set out in section 16(2) to section 16(6) is, in fact, read, looked at or listened to. The Interception of Communications Commissioner is under a duty to review the adequacy of those arrangements. Urgent authorisation of a section 8(4) warrant 6.16. RIPA makes provision (section 7(l)(b)) for cases in which an interception warrant is required urgently, yet the Secretary of State is not available to sign the warrant.", "In these cases the Secretary of State will still personally authorise the interception but the warrant is signed by a senior official, following discussion of the case between officials and the Secretary of State. RIPA restricts the issue of warrants in this way to urgent cases where the Secretary of State has personally and expressly authorised the issue of the warrant (section 7(2)(a)), and requires the warrant to contain a statement to that effect (section 7(4)(a)). 6.17. A warrant issued under the urgency procedure lasts for five working days following the date of issue unless renewed by the Secretary of State, in which case it expires after three months in the case of serious crime or six months in the case of national security or economic well-being, in the same way as other section 8(4) warrants. Format of a section 8(4) warrant 6.18.", "Each warrant is addressed to the person who submitted the application. A copy may then be served upon such providers of communications services as he or she believes will be able to assist in implementing the interception. CSPs will not normally receive a copy of the certificate. The warrant should include the following: Modification of a section 8(4) warrant and/or certificate 6.19. Interception warrants and certificates may be modified under the provisions of section 10 of RIPA.", "A warrant may only be modified by the Secretary of State or, in an urgent case, by a senior official with the express authorisation of the Secretary of State. In these cases a statement of that fact must be endorsed on the modifying instrument, and the modification ceases to have effect after five working days following the date of issue unless it is endorsed by the Secretary of State. 6.20. A certificate must be modified by the Secretary of State, except in an urgent case where a certificate may be modified by a senior official provided that the official holds a position in which he or she is expressly authorised by provisions contained in the certificate to modify the certificate on the Secretary of State’s behalf, or the Secretary of State has expressly authorised the modification and a statement of that fact is endorsed on the modifying instrument. In the latter case, the modification ceases to have effect after five working days following the date of issue unless it is endorsed by the Secretary of State.", "6.21. Where the Secretary of State is satisfied that it is necessary, a certificate may be modified to authorise the selection of communications of an individual in the British Islands. An individual’s location should be assessed using all available information. If it is not possible, to determine definitively where the individual is located using that information, an informed assessment should be made, in good faith, as to the individual’s location. If an individual is strongly suspected to be in the UK, the arrangements set out in this paragraph will apply.", "Renewal of a section 8(4) warrant 6.22. The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals are made to the Secretary of State and contain an update of the matters outlined in paragraph 6.10 above. In particular, the applicant must give an assessment of the value of interception to date and explain why it is considered that interception continues to be necessary for one or more of the purposes in section 5(3), and why it is considered that interception continues to be proportionate. 6.23.", "Where the Secretary of State is satisfied that the interception continues to meet the requirements of RIPA, the Secretary of State may renew the warrant. Where the warrant is issued on serious crime grounds, the renewed warrant is valid for a further three months. Where it is issued on national security/economic well-being grounds the renewed warrant is valid for six months. These dates run from the date of signature on the renewal instrument. 6.24.", "In those circumstances where the assistance of CSPs has been sought, a copy of the warrant renewal instrument will be forwarded to all those on whom a copy of the original warrant instrument has been served, providing they are still actively assisting. A renewal instrument will include the reference number of the warrant or warrants being renewed under this single instrument. Warrant cancellation 6.25. The Secretary of State must cancel an interception warrant if, at any time before its expiry date, he or she is satisfied that the warrant is no longer necessary on grounds falling within section 5(3) of RIPA. Intercepting agencies will therefore need to keep their warrants under continuous review and must notify the Secretary of State if they assess that the interception is no longer necessary.", "In practice, the responsibility to cancel a warrant will be exercised by a senior official in the warrant issuing department on behalf of the Secretary of State. 6.26. The cancellation instrument will be addressed to the person to whom the warrant was issued (the intercepting agency). A copy of the cancellation instrument should be sent to those CSPs, if any, who have given effect to the warrant during the preceding twelve months. Records 6.27.", "The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the Secretary of State’s decision is based, and the interception agency may be required to justify the content. Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he or she may require: 6.28. Records should also be kept of the arrangements for securing that only material which has been certified for examination for a purpose under section 5(3) and which meets the conditions set out in section 16(2) – 16(6) of RIPA in accordance with section 15 of RIPA is, in fact, read, looked at or listened to. Records should be kept of the arrangements by which the requirements of section 15(2) (minimisation of copying and distribution of intercepted material) and section 15(3) (destruction of intercepted material) are to be met. For further details see the chapter on “Safeguards”.", "7. SAFEGUARDS 7.1. All material intercepted under the authority of a warrant complying with section 8(1) or section 8(4) of RIPA and any related communications data must be handled in accordance with safeguards which the Secretary of State has approved in conformity with the duty imposed on him or her by RIPA. These safeguards are made available to the Interception of Communications Commissioner, and they must meet the requirements of section 15 of RIPA which are set out below. In addition, the safeguards in section 16 of RIPA apply to warrants complying with section 8(4).", "Any breach of these safeguards must be reported to the Interception of Communications Commissioner. The intercepting agencies must keep their internal safeguards under periodic review to ensure that they remain up-to-date and effective. During the course of such periodic reviews, the agencies must consider whether more of their internal arrangements might safely and usefully be put into the public domain. The section 15 safeguards 7.2. Section 15 of RIPA requires that disclosure, copying and retention of intercepted material is limited to the minimum necessary for the authorised purposes.", "Section 15(4) of RIPA provides that something is necessary for the authorised purposes if the intercepted material: Dissemination of intercepted material 7.3. The number of persons to whom any of the intercepted material is disclosed, and the extent of disclosure, is limited to the minimum that is necessary for the authorised purposes set out in section 15(4) of RIPA. This obligation applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. It is enforced by prohibiting disclosure to persons who have not been appropriately vetted and also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person’s duties, which must relate to one of the authorised purposes, are such that he or she needs to know about the intercepted material to carry out those duties. In the same way, only so much of the intercepted material may be disclosed as the recipient needs.", "For example, if a summary of the intercepted material will suffice, no more than that should be disclosed. 7.4. The obligations apply not just to the original interceptor, but also to anyone to whom the intercepted material is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the originator’s permission before disclosing the intercepted material further. In others, explicit safeguards are applied to secondary recipients.", "7.5. Where intercepted material is disclosed to the authorities of a country or territory outside the UK, the agency must take reasonable steps to ensure that the authorities in question have and will maintain the necessary procedures to safeguard the intercepted material, and to ensure that it is disclosed, copied, distributed and retained only to the minimum extent necessary. In particular, the intercepted material must not be further disclosed to the authorities of a third country or territory unless explicitly agreed with the issuing agency, and must be returned to the issuing agency or securely destroyed when no longer needed. Copying 7.6. Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section 15(4) of RIPA.", "Copies include not only direct copies of the whole of the intercepted material, but also extracts and summaries which identify themselves as the product of an interception, and any record referring to an interception which includes the identities of the persons to or by whom the intercepted material was sent. The restrictions are implemented by requiring special treatment of such copies, extracts and summaries that are made by recording their making, distribution and destruction. Storage 7.7. Intercepted material and all copies, extracts and summaries of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It must be held so as to be inaccessible to persons without the required level of vetting.", "This requirement to store intercept product securely applies to all those who are responsible for handling it, including CSPs. The details of what such a requirement will mean in practice for CSPs will be set out in the discussions they have with the Government before a Section 12 Notice is served (see paragraph 3.13). Destruction 7.8. Intercepted material, and all copies, extracts and summaries which can be identified as the product of an interception, must be marked for deletion and securely destroyed as soon as possible once it is no longer needed for any of the authorised purposes. If such intercepted material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section 15(3) of RIPA.", "7.9. Where an intercepting agency undertakes interception under a section 8(4) warrant and receives unanalysed intercepted material and related communications data from interception under that warrant, the agency must specify (or must determine on a system by system basis) maximum retention periods for different categories of the data which reflect its nature and intrusiveness. The specified periods should normally be no longer than two years, and should be agreed with the Interception of Communications Commissioner. Data may only be retained for longer than the applicable maximum retention periods if prior authorisation is obtained from a senior official within the particular intercepting agency on the basis that continued retention of the data has been assessed to be necessary and proportionate. If continued retention of any such data is thereafter assessed to no longer meet the tests of necessity and proportionality, it must be deleted.", "So far as possible, all retention periods should be implemented by a process of automated deletion, which is triggered once the applicable maximum retention period has been reached for the data at issue. Personnel security 7.10. All persons who may have access to intercepted material or need to see any reporting in relation to it must be appropriately vetted. On an annual basis, managers must identify any concerns that may lead to the vetting of individual members of staff being reconsidered. The vetting of each individual member of staff must also be periodically reviewed.", "Where it is necessary for an officer of one agency to disclose intercepted material to another, it is the former’s responsibility to ensure that the recipient has the necessary clearance. The section 16 safeguards 7.11. Section 16 provides for additional safeguards in relation to intercepted material gathered under section 8(4) warrants, requiring that the safeguards: 7.12. In addition, any individual selection of intercepted material must be proportionate in the particular circumstances (given section 6(1) of the Human Rights Act 1998). 7.13.", "The certificate ensures that a selection process is applied to material intercepted under section 8(4) warrants so that only material described in the certificate is made available for human examination (in the sense of being read, looked at or listened to). No official is permitted to gain access to the data other than as permitted by the certificate. 7.14. In general, automated systems must, where technically possible, be used to effect the selection in accordance with section 16(1) of RIPA. As an exception, a certificate may permit intercepted material to be accessed by a limited number of specifically authorised staff without having been processed or filtered by the automated systems.", "Such access may only be permitted to the extent necessary to determine whether the material falls within the main categories to be selected under the certificate, or to ensure that the methodology being used remains up to date and effective. Such checking must itself be necessary on the grounds specified in section 5(3) of RIPA. Once those functions have been fulfilled, any copies made of the material for those purposes must be destroyed in accordance with section 15(3) of RIPA. Such checking by officials should be kept to an absolute minimum; whenever possible, automated selection techniques should be used instead. Checking will be kept under review by the Interception of Communications Commissioner during his or her inspections.", "7.15. Material gathered under a section 8(4) warrant should be read, looked at or listened to only by authorised persons who receive regular mandatory training regarding the provisions of RIPA and specifically the operation of section 16 and the requirements of necessity and proportionality. These requirements and procedures must be set out in internal guidance provided to all authorised persons and the attention of all authorised persons must be specifically directed to the statutory safeguards. All authorised persons must be appropriately vetted (see paragraph 7.10 for further information). 7.16.", "Prior to an authorised person being able to read, look at or listen to material, a record should be created setting out why access to the material is required consistent with, and pursuant to, section 16 and the applicable certificate, and why such access is proportionate. Save where the material or automated systems are being checked as described in paragraph 7.14, the record must indicate, by reference to specific factors, the material to which access is being sought and systems should, to the extent possible, prevent access to the material unless such a record has been created. The record should include any circumstances that are likely to give rise to a degree of collateral infringement of privacy, and any measures taken to reduce the extent of the collateral intrusion. All records must be retained for the purposes of subsequent examination or audit. 7.17.", "Access to the material as described in paragraph 7.15 must be limited to a defined period of time, although access may be renewed. If access is renewed, the record must be updated with the reason for the renewal. Systems must be in place to ensure that if a request for renewal is not made within that period, then no further access will be granted. When access to the material is no longer sought, the reason for this must also be explained in the record. 7.18.", "Periodic audits should be carried out to ensure that the requirements set out in section 16 of RIPA and Chapter 3 of this code are being met. These audits must include checks to ensure that the records requesting access to material to be read, looked at, or listened to have been correctly compiled, and specifically, that the material requested falls within matters certified by the Secretary of State. Any mistakes or procedural deficiencies should be notified to management, and remedial measures undertaken. Any serious deficiencies should be brought to the attention of senior management and any breaches of safeguards (as noted in paragraph 7.1) must be reported to the Interception of Communications Commissioner. All intelligence reports generated by the authorised persons must be subject to a quality control audit.", "7.19. In order to meet the requirements of RIPA described in paragraph 6.3 above, where a selection factor refers to an individual known to be for the time being in the British Islands, and has as its purpose or one of its purposes, the identification of material contained in communications sent by or intended for him or her, a submission must be made to the Secretary of State, or to a senior official in an urgent case, giving an explanation of why an amendment to the section 8(4) certificate in relation to such an individual is necessary for a purpose falling within section 5(3) of RIPA and is proportionate in relation to any conduct authorised under section 8(4) of RIPA. 7.20. The Secretary of State must ensure that the safeguards are in force before any interception under section 8(4) warrants can begin. The Interception of Communications Commissioner is under a duty to review the adequacy of the safeguards.", "... 10. OVERSIGHT 10.1. RIPA provides for an Interception of Communications Commissioner, whose remit is to provide independent oversight of the use of the powers contained within the warranted interception regime under Chapter I of Part I of RIPA. 10.2. The Commissioner carries out biannual inspections of each of the nine interception agencies.", "The primary objectives of the inspections are to ensure that the Commissioner has the information he or she requires to carry out his or her functions under section 57 of RIPA and produce his or her report under section 58 of RIPA. This may include inspection or consideration of: 10.3. Any person who exercises the powers in RIPA Part I Chapter I must report to the Commissioner any action that is believed to be contrary to the provisions of RIPA or any inadequate discharge of section 15 safeguards. He or she must also comply with any request made by the Commissioner to provide any such information as the Commissioner requires for the purpose of enabling him or her to discharge his or her functions.” 5. Statement of Charles Farr 91.", "In his witness statement prepared for the Liberty proceedings, Charles Farr indicated that, beyond the details set out in RIPA, the 2010 Code, and the draft 2016 Code (which had at that stage been published for consultation), the full details of the sections 15 and 16 safeguards were kept confidential. He had personally reviewed the arrangements and was satisfied that they could not safely be put in the public domain without undermining the effectiveness of the interception methods. However, the arrangements were made available to the Commissioner who is required by RIPA to keep them under review. Furthermore, each intercepting agency was required to keep a record of the arrangements in question and any breach must be reported to the Commissioner. 6.", "Belhadj and Others v. Security Service, Secret Intelligence Service, Government Communications Headquarters, the Secretary of State for the Home Department, and the Secretary of State for the Foreign and Commonwealth Office, IPT/13/132-9/H and IPT/14/86/CH 92. The applicants in this case complained of breaches of Articles 6, 8 and 14 of the Convention arising from the alleged interception of their legally privileged communications. Insofar as Amnesty International, in the course of the Liberty proceedings, complained about the adequacy of the arrangements for the protection of material protected by legal professional privilege (“LPP”), those complaints were “hived off” to be dealt with in this case, and Amnesty International was joined as a claimant (see paragraph 47 above). 93. In the course of the proceedings, the respondents conceded that by virtue of there not being in place a lawful system for dealing with LPP, from January 2010 the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material had not been in accordance with the law for the purposes of Article 8 § 2 of the Convention and was accordingly unlawful.", "The Security Service and GCHQ confirmed that they would work in the forthcoming weeks to review their policies and procedures in light of the draft Interception Code of Practice and otherwise. 94. The IPT subsequently held a closed hearing, with the assistance of Counsel to the Tribunal (see paragraph 142 below), to consider whether any documents or information relating to any legally privileged material had been intercepted or obtained by the respondents. In a determination of 29 March 2015 it found that only two documents containing material subject to legal professional privilege of any of the claimants had been held by the agencies, and they neither disclosed nor referred to legal advice. It therefore found that the claimant concerned had not suffered any detriment or damage, and that the determination provided adequate just satisfaction.", "It nevertheless required that GCHQ provide an undertaking that those parts of the documents containing legally privileged material would be destroyed or deleted; that a copy of the documents would be delivered to the Interception of Communications Commissioner to be retained for five years; and that a closed report would be provided within fourteen days confirming the destruction and deletion of the documents. 95. Draft amendments to both the Interception of Communications Code of Practice and the Acquisition of Communications Data Code of Practice were subsequently put out for consultation and the Codes which were adopted as a result contained expanded sections concerning access to privileged information. B. Intelligence sharing 1.", "British-US Communication Intelligence Agreement 96. A British-US Communication Intelligence Agreement of 5 March 1946 governs the arrangements between the British and United States authorities in relation to the exchange of intelligence information relating to “foreign” communications, defined by reference to countries other than the United States, the United Kingdom and the Commonwealth. Pursuant to the agreement, the parties undertook to exchange the products of a number of interception operations relating to foreign communications. 2. Relevant statutory framework for the operation of the intelligence services 97.", "There are three intelligence services in the United Kingdom: the security service (“MI5”), the secret intelligence service (“MI6”) and GCHQ. (a) MI5 98. Pursuant to section 2 of the Security Services Act 1989 (“SSA”), it is the duty of the Director-General of MI5, who is appointed by the Secretary of State, to ensure that there are arrangements for securing that no information is obtained by MI5 except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings. 99. According to section 1 of the SSA, the functions of MI5 are the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means; to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands; and to act in support of the activities of police forces, the National Crime Agency and other law enforcement agencies in the prevention and detection of serious crime.", "(b) MI6 100. Section 2 of the Intelligence Services Act 1994 (“ISA”) provides that the duties of the Chief of Service of MI6, who is appointed by the Secretary of State, include ensuring that there are arrangements for securing that no information is obtained by MI6 except so far as necessary for the proper discharge of its functions, and that no information is disclosed by it except so far as necessary for that purpose, in the interests of national security, for the purposes of the prevention or detection of serious crime or for the purpose of any criminal proceedings. 101. According to section 1 of the ISA, the functions of MI6 are to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and to perform other tasks relating to the actions or intentions of such persons. Those functions may only be exercised in the interests of national security, with particular reference to the State’s defence and foreign policies; in the interests of the economic well-being of the United Kingdom; or in support of the prevention or detection of serious crime.", "(c) GCHQ 102. Section 4 of the ISA provides that it is the duty of the Director of GCHQ, who is appointed by the Secretary of State, to ensure that there are arrangements for securing that it obtains no information except so far as necessary for the proper discharge of its functions and that no information is disclosed by it except so far as necessary. 103. According to section 3 of the ISA, one of the functions of GCHQ is to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material. This function is exercisable only in the interests of national security, with particular reference to the State’s defence and foreign policies; in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or in support of the prevention or detection of serious crime.", "(d) Counter-Terrorism Act 2008 104. Section 19 of the Counter-Terrorism Act 2008 allows the disclosure of information to any of the intelligence services for the purpose of the exercise of any of their functions. Information obtained by an intelligence service in connection with the exercise of its functions may be used by that service in connection with the exercise of any of its other functions. 105. Information obtained by MI5 may be disclosed for the purpose of the proper discharge of its functions, for the purpose of the prevention or detection of serious crime, or for the purpose of any criminal proceedings.", "Information obtained by MI6 may be disclosed for the purpose of the proper discharge of its functions, in the interests of national security, for the purpose of the prevention or detection of serious crime, or for the purpose of any criminal proceedings. Information obtained by GCHQ may be disclosed by it for the purpose of the proper discharge of its functions or for the purpose of any criminal proceedings. (e) The Data Protection Act 1998 (“DPA”) 106. The DPA is the legislation transposing into United Kingdom law Directive 95/46/EC on the protection of personal data. Each of the intelligence services is a “data controller” for the purposes of the DPA and, as such, they are required to comply – subject to exemption by Ministerial certificate – with the data protection principles in Part 1 of Schedule 1, including: “(5) Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes ... and “(7) Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.” (f) The Official Secrets Act 1989 (“OSA”) 107.", "A member of the intelligence services commits an offence under section 1(1) of the OSA if he discloses, without lawful authority, any information, document or other article relating to security or intelligence which is in his possession by virtue of his position as a member of those services. (g) The Human Rights Act 1998 (“HRA”) 108. Pursuant to section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 3. The Interception of Communications Code of Practice 109.", "Following the Liberty proceedings, the information contained in the 9 October disclosure was incorporated into the IC Code of Practice: “12. RULES FOR REQUESTING AND HANDLING UNANALYSED INTERCEPTED COMMUNICATIONS FROM A FOREIGN GOVERNMENT Application of this chapter 12.1. This chapter applies to those intercepting agencies that undertake interception under a section 8(4) warrant. Requests for assistance other than in accordance with an international mutual assistance agreement 12.2. A request may only be made by an intercepting agency to the government of a country or territory outside the UK for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual assistance agreement, if either: 12.3.", "A request falling within the second bullet of paragraph 12.2 may only be made in exceptional circumstances and must be considered and decided upon by the Secretary of State personally. 12.4. For these purposes, a “relevant RIPA interception warrant” means one of the following: (i) a section 8(1) warrant in relation to the subject at issue; (ii) a section 8(4) warrant and an accompanying certificate which includes one or more “descriptions of intercepted material” (within the meaning of section 8(4)(b) of RIPA) covering the subject’s communications, together with an appropriate section 16(3) modification (for individuals known to be within the British Islands); or (iii) a section 8(4) warrant and an accompanying certificate which includes one or more “descriptions of intercepted material” covering the subject’s communications (for other individuals). Safeguards applicable to the handling of unanalysed intercepted communications from a foreign government 12.5. If a request falling within the second bullet of paragraph 12.2 is approved by the Secretary of State other than in relation to specific selectors, any communications obtained must not be examined by the intercepting agency according to any factors as are mentioned in section 16(2)(a) and (b) of RIPA unless the Secretary of State has personally considered and approved the examination of those communications by reference to such factors.", "12.6. Where intercepted communications content or communications data are obtained by the intercepting agencies as set out in paragraph 12.2, or are otherwise received by them from the government of a country or territory outside the UK in circumstances where the material identifies itself as the product of an interception, (except in accordance with an international mutual assistance agreement), the communications content and communications data must be subject to the same internal rules and safeguards that apply to the same categories of content or data when they are obtained directly by the intercepting agencies as a result of interception under RIPA. 12.7. All requests in the absence of a relevant RIPA interception warrant to the government of a country or territory outside the UK for unanalysed intercepted communications (and associated communications data) will be notified to the Interception of Communications Commissioner.” C. Acquisition of communications data 1. Chapter II of RIPA 110.", "Chapter II of Part 1 of RIPA sets out the framework under which public authorities may acquire communications data from CSPs. 111. Pursuant to section 22, authorisation for the acquisition of communications data from CSPs is granted by a “designated person”, being a person holding such office, rank or position with relevant public authorities as are prescribed by an order made by the Secretary of State. The designated person may either grant authorisation for persons within the same “relevant public authority” as himself to “engage in conduct to which this Chapter applies” (authorisation under section 22(3)), or he may, by notice to the CSP, require it to either disclose data already in its possession, or to obtain and disclose data (notice under section 22(4)). For the purposes of section 22(3), “relevant public authorities” includes a police force, the National Crime Agency, Her Majesty’s Revenue and Customs, any of the intelligence services, and any such public authority as may be specified by an order made by the Secretary of State.", "112. Section 22(2) further provides that the designated person may only grant an authorisation under section 22(3) or give a notice under section 22(4) if he believes it is necessary for one of the following grounds: “(a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; (c) in the interests of the economic well-being of the United Kingdom; (d) in the interests of public safety; (e) for the purpose of protecting public health; (f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; (g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or (h) for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.” 113. He must also believe that obtaining the data is proportionate to what is sought to be achieved. 114. Section 23 requires that the authorisation or notice be granted in writing or, if not, in a manner which produces a record of it having been granted.", "It must also describe the conduct authorised, the communications data to be obtained or disclosed, set out the grounds on which it is believed necessary to grant the authorisation or give the notice, and specify the office, rank or position of the person giving the authorisation. 115. Authorisations under section 22(3) and notices under section 22(4) last for one month, but may be renewed at any time before the expiry of that period. 116. The person who has given a notice under section 22(4) may cancel it if he is satisfied that it is no longer necessary for one of the specified grounds, or it is no longer proportionate to what is sought to be achieved.", "2. The Acquisition and Disclosure of Communications Data: Code of Practice 117. The Acquisition and Disclosure of Communications Data: Code of Practice, issued under section 71 RIPA and last updated in 2015, provides, as relevant: “1 INTRODUCTION 1.1. This code of practice relates to the powers and duties conferred or imposed under Chapter II of Part I of the Regulation of Investigatory Powers Act 2000 (‘RIPA’). It provides guidance on the procedures to be followed when acquisition of communications data takes place under those provisions.", "This version of the code replaces all previous versions of the code. 1.2. This code applies to relevant public authorities within the meaning of RIPA: those listed in section 25 or specified in orders made by the Secretary of State under section 25. 1.3. Relevant public authorities for the purposes of Chapter II of Part I of RIPA (‘Chapter II’) should not: ... 1.7.", "The exercise of powers and duties under Chapter II is kept under review by the Interception of Communications Commissioner (‘the Commissioner’) appointed under section 57 of RIPA and by his inspectors who work from the Interception of Communications Commissioner’s Office (IOCCO). ... 2 GENERAL EXTENT OF POWERS Scope of Powers, Necessity and Proportionality 2.1. The acquisition of communications data under RIPA will be a justifiable interference with an individual’s human rights under Articles 8 and, in certain circumstances, 10 of the European Convention on Human Rights only if the conduct being authorised or required to take place is both necessary and proportionate and in accordance with law. 2.2. RIPA stipulates that conduct to be authorised or required must be necessary for one or more of the purposes set out in section 22(2) of RIPA: 2.3.", "The purposes for which some public authorities may seek to acquire communications data are restricted by order. The designated person may only consider necessity on grounds open to their public authority and only in relation to matters that are the statutory or administrative function of their respective public authority. The purposes noted above should only be used by a public authority in relation to the specific (and often specialist) offences or conduct that it has been given the statutory function to investigate. 2.4. There is a further restriction upon the acquisition of communications data for the following purposes: Only communications data within the meaning of section 21(4)(c) of RIPA [being subscriber information] may be acquired for these purposes and only by those public authorities permitted by order to acquire communications data for one or more of those purposes.", "2.5. When a public authority wishes to acquire communications data, the designated person must believe that the acquisition, in the form of an authorisation or notice, is necessary. He or she must also believe that conduct to be proportionate to what is sought to be achieved by obtaining the specified communications data – that the conduct is no more than is required in the circumstances. This involves balancing the extent of the interference with an individual’s rights and freedoms against a specific benefit to the investigation or operation being undertaken by a relevant public authority in the public interest. 2.6.", "As well as consideration of the rights of the individual under investigation, consideration must also be given to any actual or potential infringement of the privacy and other rights of individuals who are not the subject of the investigation or operation. An application for the acquisition of communications data should draw attention to any circumstances which give rise to significant collateral intrusion. 2.7. Particular consideration must also be given, when pertinent, to the right to freedom of expression. 2.8.", "Taking all these considerations into account in a particular case, an interference with the rights of an individual may still not be justified because the adverse impact on the rights of another individual or group of individuals is too severe. 2.9. Any conduct where the interference is excessive in relation to the aims of the investigation or operation, or is in any way arbitrary, will not be proportionate. 2.10. Before public authorities can request communications data, authorisation must be given by the designated person in the relevant authority.", "A designated person is someone holding a prescribed office, rank or position within a relevant public authority that has been designated for the purpose of acquiring communications data by order. 2.11. The relevant public authorities for Chapter II are set out in section 25(1). They are: These and additional relevant public authorities are listed in the Regulation of Investigatory Powers (Communications Data) Order 201033 and any similar future orders made under section 25 of the Act. Communications Data 2.12.", "The code covers any conduct relating to the exercise of powers and duties under Chapter II of Part I of RIPA to acquire or disclose communications data. Communications data is defined in section 21(4) of RIPA. 2.13. The term ‘communications data’ embraces the ‘who’, ‘when’, ‘where’, and ‘how’ of a communication but not the content, not what was said or written. 2.14.", "It includes the manner in which, and by what method, a person or machine communicates with another person or machine. It excludes what they say or what data they pass on within a communication including text, audio and video (with the exception of traffic data to establish another communication such as that created from the use of calling cards, redirection services, or in the commission of ‘dial through’ fraud and other crimes, where data is passed on to activate communications apparatus in order to obtain communications services fraudulently). 2.15. It can include the address on an envelope, the time and duration of a communication, the telephone number or email address of the originator and recipient, and sometimes the location of the device from which the communication was made. It can also include data relating to unsuccessful call attempts i.e.", "when the person being dialled does not answer the call, but where the network has been able to connect it successfully. It does not include data relating to an unconnected call i.e. when a call is placed, but the network is unable to carry it to its intended recipient. It covers electronic communications (not just voice telephony) and also includes postal services. 2.16.", "Communications data is generated, held or obtained in the provision, delivery and maintenance of communications services, those being postal services or telecommunications services. DRIPA clarified the definition of telecommunications service in section 2 of RIPA to make explicit that provision of access to systems for the creation, management or storage of communications is included in the provision of a service. 2.17. ’Communications service providers’ may therefore include those persons who provide services where customers, guests or members of the public are provided with access to communications services that are ancillary to the provision of another service, for example in hotels, restaurants, libraries and airport lounges. 2.18.", "In circumstances where it is impractical for the data to be acquired from, or disclosed by, the service provider, or where there are security implications in doing so, the data may be sought from the CSP which provides the communications service offered by such hotels, restaurants, libraries and airport lounges. Equally, circumstances may necessitate the acquisition of further communications data for example, where a hotel is in possession of data identifying specific telephone calls originating from a particular guest room. 2.19. Consultation with the public authority’s Single Point of Contact (SPoC) will determine the most appropriate plan for acquiring data where the provision of a communication service engages a number of providers, though it is the designated person who ultimately decides which of the CSPs should be given a notice. With the proliferation of modern communications media, including mobile telephony, internet communications, and social networks, and given that one individual can use many different forms of communications, the knowledge and experience of the SPoC in providing advice and guidance to the designated person is significant in ensuring appropriateness of any action taken to acquire the data necessary for an investigation.", "If a CSP, having been given a notice, believes that in future another CSP is better placed to respond, they should approach the authority to inform them of their view after disclosing the relevant data that they hold. 2.20. Any conduct to determine the CSP that holds, or may hold, specific communications data is not conduct to which the provisions of Chapter II apply. This includes, for example, establishing from information available to the public or, where necessary, from a service provider which provider makes available a specific service, such as a particular telephone number or an internet protocol address. 2.21.", "Communications data is defined as: 2.22. The data available on individuals, and the level of intrusion, differs between the categories of data. The public authorities which can acquire the data and, in some cases, the level of seniority of the designated person differ according to the categories of data in question. ... Traffic Data 2.24. RIPA defines certain communications data as ‘traffic data’ in sections 21(4)(a) and 21(6) of RIPA.", "This is data that is or has been comprised in or attached to a communication for the purpose of transmitting the communication and which ‘in relation to any communication’: 2.25. Traffic data includes data identifying a computer file or a computer program to which access has been obtained, or which has been run, by means of the communication – but only to the extent that the file or program is identified by reference to the apparatus in which the file or program is stored. In relation to internet communications, this means traffic data stops at the apparatus within which files or programs are stored, so that traffic data may identify a server or domain name (web site) but not a web page. For example, the fact that a subject of interest has visited pages at http://www.gov.uk/ can be acquired as communications traffic data (if available from the CSP), whereas that a specific webpage that was visited is http://www.gov.uk/government/collections/ripa‑‑forms‑2 may not be acquired as communications data (as it would be content). 2.26.", "Examples of traffic data, within the definition in section 21(6), include: ... Service Use Information 2.28. Data relating to the use made by any person of a postal or telecommunications service, or any part of it, is widely known as ‘service use information’ and falls within section 21(4)(b) of RIPA. 2.29. Service use information is, or can be, routinely made available by a CSP to the person who uses or subscribes to the service to show the use of a service or services and to account for service charges over a given period of time. Examples of data within the definition at section 21(4)(b) include: Subscriber Information 2.30.", "The third type of communications data, widely known as ‘subscriber information’, is set out in section 21(4)(c) of RIPA. This relates to information held or obtained by a CSP about persons to whom the CSP provides or has provided a communications service. Those persons will include people who are subscribers to a communications service without necessarily using that service and persons who use a communications service without necessarily subscribing to it. 2.31. Examples of data within the definition at section 21(4)(c) include: ... 2.35.", "Additional types of data may fall into the category of subscriber information, as communications services have developed and broadened, for example where a CSP chooses to collect information about the devices used by their customers. Prior to the acquisition of data which does not fall into the illustrative list of traditional subscriber information above, specific consideration should be given to whether it is particularly sensitive or intrusive, in order to ensure that such a request is still necessary and proportionate, and compliant with Chapter II. Further Guidance on Necessity and Proportionality 2.36. Training regarding necessity and proportionality should be made available to all those who participate in the acquisition and disclosure of communications data. Necessity 2.37.", "In order to justify that an application is necessary, the application needs as a minimum to cover three main points: 2.38. Necessity should be a short explanation of the event, the person and the communications data and how these three link together. The application must establish the link between the three aspects to be able to demonstrate the acquisition of communications data is necessary for the statutory purpose specified. Proportionality 2.39. Applications should include an outline of how obtaining the data will benefit the investigation or operation.", "If more than one item of data is being sought, the relevance of the additional data should be explained. 2.40. This should include explaining how the level of intrusion is justified when taking into consideration the benefit the data will give to the investigation. This justification should include confirmation that relevant less intrusive investigations have already been undertaken where possible. For example, the subscriber details of a phone number may be obtainable from a phone book or other publically available sources.", "2.41. The relevance of any time periods requested must be explained, outlining how these periods are proportionate to the event under investigation. 2.42. An examination of the proportionality of the application should particularly include a consideration of the rights (particularly to privacy and, in relevant cases, freedom of expression) of the individual and a balancing of these rights against the benefit to the investigation. 2.43.", "Collateral intrusion is the obtaining of any information relating to individuals other than the subject(s) of the investigation. Consideration of collateral intrusion forms part of the proportionality considerations, and becomes increasingly relevant when applying for traffic data or service use data. Applications should include details of what collateral intrusion may occur and how the time periods requested impact on the collateral intrusion. When there are no meaningful collateral intrusion risks, such as when applying for subscriber details of the person under investigation, the absence of collateral intrusion should be noted. 2.44.", "An examination of the proportionality of the application should also involve a consideration of possible unintended consequences and, when, relevant this should be noted. Unintended consequences of an application are outcomes that are not intended by the application. 2.45. Unintended consequences are more likely in more complicated requests for traffic data or in applications for the data of those in professions with duties of confidentiality. For example, if a journalist is a victim of crime, applications for service use data related to that journalist’s phone number as part of the criminal investigation may also return some phone numbers of that journalist’s sources, with unintended impact on freedom of expression.", "Such an application may still be necessary and proportionate but the risk of unintended consequences should be considered. The special considerations that arise in such cases are discussed further in the section on “Communications data involving certain professions”. 3 GENERAL RULES ON THE GRANTING OF AUTHORISATIONS AND GIVING OF NOTICES 3.1. Acquisition of communications data under RIPA involves four roles within a relevant public authority: 3.2. RIPA provides two alternative means for acquiring communications data, by way of: An authorisation granted to a member of a public authority permits that person to engage in conduct relating to the acquisition and disclosure of communications data under Part I Chapter II of RIPA.", "A notice given to a postal or telecommunications operator requires it to disclose the relevant communications data held by it to a public authority, or to obtain and disclose the data, when it is reasonably practicable for them to do so. Both authorisations and notices are explained in more detail within this chapter. The applicant 3.3. The applicant is a person involved in conducting an investigation or operation for a relevant public authority who makes an application in writing or electronically for the acquisition of communications data. The applicant completes an application form, setting out for consideration by the designated person, the necessity and proportionality of a specific requirement for acquiring communications data.", "3.4. An application may be made orally in exceptional circumstances, but a record of that application must be made in writing or electronically as soon as possible, and certainly within one working day (paragraphs 3.65 ‑ 3.71 provide more detail on urgent procedures). 3.5. An application – the original or a copy of which must be retained by the SPoC within the public authority – must: 3.6. The application should record subsequently whether it was approved by a designated person, by whom and when that decision was made.", "If approved, the application form should, to the extent necessary, be cross‑referenced to any authorisation granted or notice given. The designated person 3.7. The designated person is a person holding a prescribed office in a relevant public authority. It is the designated person’s responsibility to consider the application and record their considerations at the time (or as soon as is reasonably practicable) in writing or electronically. If the designated person believes the acquisition of communications data is necessary and proportionate in the specific circumstances, an authorisation is granted or a notice is given.", "3.8. Individuals who undertake the role of a designated person must have current working knowledge of human rights principles and legislation, specifically those of necessity and proportionality, and how they apply to the acquisition of communications data under Chapter II and this code. 3.9. When considering proportionality, the designated person should apply particular consideration to unintended consequences. The seniority, experience and training of the designated person provides them with a particular opportunity to consider possible unintended consequences.", "3.10. Designated persons must ensure that they grant authorisations or give notices only for purposes and only in respect of types of communications data that a designated person of their office, rank or position in the relevant public authority may grant or give. 3.11. The designated person shall assess the necessity for any conduct to acquire or obtain communications data taking account of any advice provided by the single point of contact (SPoC). 3.12.", "Designated persons must be independent from operations and investigations when granting authorisations or giving notices related to those operations. 3.13. Except where it is necessary to act urgently, in circumstances where a public authority is not able to call upon the services of a designated person who is independent from the investigation or operation, the Senior Responsible Officer must inform the Interception of Communications Commissioner of the circumstances and reasons (noting the relevant designated persons who, in these circumstances, will not be independent). These may include: 3.14. In all circumstances where public authorities use designated persons who are not independent from an operation or investigation this must be notified to the Commissioner at the next inspection.", "The details of the public authorities and the reasons such measures are being undertaken may be published and included in the Commissioner’s report. 3.15. Where a designated person is not independent from the investigation or operation their involvement and their justification for undertaking the role of the designated person must be explicit in their recorded considerations. 3.16. Particular care must be taken by designated persons when considering any application to obtain communications data to identify apparatus (such as a mobile telephone) at or within a location or locations and at or between times on a given date or dates where the identity of the apparatus is unknown.", "Unless the application is based on information that the apparatus was used or was likely to have been used in a particular location or locations at a particular time or times it will, in practice, be rare that any conduct to obtain communications data will be proportionate or the collateral intrusion justified. ... The single point of contact 3.19. The single point of contact (SPoC) is an accredited individual trained to facilitate lawful acquisition of communications data and effective co‑operation between a public authority and CSPs. Despite the name, in practice many organisations will have multiple SPoCs, working together.", "To become accredited an individual must complete a course of training appropriate for the role of a SPoC and have been issued the relevant SPoC authentication identifier. SPoCs in public authorities should be security cleared in accordance with their own organisation’s requirements. Details of all accredited individuals are available to CSPs for authentication purposes. 3.20. Communications data should be treated as information with a classification of OFFICIAL and a caveat of SENSITIVE, though it may be classified higher if appropriate.", "When handling, processing, and distributing such information, SPoCs must comply with local security policies and operating procedures. The SENSITIVE caveat is for OFFICIAL information that is subject to ‘need to know’ controls so that only authorised personnel can have access to the material. This does not preclude, for example, the disclosure of material or the use of this material as evidence in open court when required. Rather, the classification and caveat of OFFICIAL ‑ SENSITIVE makes clear that communications data must be treated with care, noting the impact on the rights to privacy and, where appropriate, freedom of expression of the subjects of interest and, depending on the data, possibly some of their communications contacts. Communications data acquired by public authorities must also by stored and handled in accordance with duties under the Data Protection Act.", "3.21. An accredited SPoC promotes efficiency and good practice in ensuring only practical and lawful requirements for communications data are undertaken. This encourages the public authority to regulate itself. The SPoC provides objective judgement and advice to both the applicant and the designated person. In this way the SPoC provides a ‘guardian and gatekeeper’ function ensuring that public authorities act in an informed and lawful manner.", "3.22. The SPoC should be in a position to: 3.23. The SPoC would normally be the person who takes receipt of any communications data acquired from a CSP (see paragraphs 3.33 and 3.49) and would normally be responsible for its dissemination to the applicant. 3.24. Public authorities unable to call upon the services of an accredited SPoC should not undertake the acquisition of communications data.", "Nonetheless, in the course of a joint investigation between authority A with no SPoC and authority B with RIPA communications data acquisition powers, authority B may, where necessary and proportionate, acquire communications data under RIPA to further the joint investigation. 3.25. In circumstances where a CSP is approached by a person who cannot be authenticated as an accredited individual and who seeks to obtain data under the provisions of RIPA, the CSP may refuse to comply with any apparent requirement for disclosure of data until confirmation of both the person’s accreditation and their SPoC authentication identifier is obtained from the Home Office. 3.26. For each individual application, the roles of SPoC and designated persons will normally be carried out by two persons.", "In exceptional cases, such as those covered under the urgent oral procedure or, on rare occasions, for security reasons, both roles may be carried out by the same person. One person may, in separate applications, carry out the roles of either the SPoC or the designated person. 3.27. For each individual application, the roles of SPOC and Applicant will also normally be carried out by two persons. In exceptional cases, such as those covered under the urgent oral procedure or, on rare occasions, for security reasons, both roles may be carried out by the same person.", "One person may, in separate applications, carry out the roles of either the SPOC or the Applicant. 3.28. The same person must never be both the applicant and the designated person. Clearly, therefore, the same person should never be an applicant, a designated person and a SPoC. 3.29.", "Where a public authority seeks to obtain communications data using provisions providing explicitly for the obtaining of communications data (other than Chapter II of Part I of RIPA) or using statutory powers conferred by a warrant or order issued by the Secretary of State or a person holding judicial office, the SPoC should be engaged in the process of obtaining the data to ensure effective co‑operation between the public authority and the CSP. 3.30. Occasionally public authorities will wish to request data from CSPs that is neither communications data nor the content of communications. Given the training undertaken by a SPoC and the on‑going nature of a SPoC’s engagement with CSPs, it is good practice to engage the SPoC to liaise with the CSP on such requests. The senior responsible officer 3.31.", "Within every relevant public authority a senior responsible officer must be responsible for: Authorisations 3.32. An authorisation provides for persons within a public authority to engage in specific conduct, relating to a postal service or telecommunications system, to obtain communications data. 3.33. Any designated person in a public authority may only authorise persons working in the same public authority to engage in specific conduct, such as requesting the data via secure auditable communications data acquisition systems. This will normally be the public authority’s SPoC, though local authorities must now use the National Anti‑Fraud Network (see later in this chapter for more details).", "3.34. The decision of a designated person whether to grant an authorisation shall be based upon information presented to them in an application. 3.35. An authorisation may be appropriate where: 3.36. An authorisation is not served upon a CSP, although there may be circumstances where a CSP may require or may be given an assurance that conduct being, or to be, undertaken is lawful.", "That assurance may be given by disclosing details of the authorisation or the authorisation itself. 3.37. An authorisation – the original or a copy of which must be retained by the SPoC within the public authority – must: ... 3.40. At the time of giving a notice or granting an authorisation to obtain specific traffic data or service use data, a designated person may also authorise, to the extent necessary and proportionate at that time, the consequential acquisition of specific subscriber information relating to the traffic data or service use data to be obtained. This is relevant where there is a necessary and proportionate requirement to identify with whom a person has been in communication, for example: 3.41.", "At the time of giving a notice or granting an authorisation to obtain specific traffic data, a designated person may also authorise, to the extent necessary and proportionate at that time, the consequential acquisition of traffic data or service use information. This is relevant where there is a necessary and proportionate requirement to identify a person from the traffic data to be acquired, and the means to do so requires the CSP or another CSP to query their traffic data or service use information, for example: 3.42. It is the duty of the senior responsible officer to ensure that the designated person, applicant or other person makes available to the SPoC such information as the senior responsible officer thinks necessary to ensure the integrity of any requirements for the acquisition of subscriber information to be obtained directly upon the acquisition or disclosure of any traffic data or service use data, and their compliance with Chapter II and with this code. Notices 3.43. The giving of a notice is appropriate where a CSP is able to retrieve or obtain specific data, and to disclose that data, unless the grant of an authorisation is more appropriate.", "A notice may require a CSP to obtain any communications data, if that data is not already in its possession. 3.44. The decision of a designated person whether to give a notice shall be based on information presented to them in an application. 3.45. The ‘giving of a notice’ means the point at which a designated person determines that a notice should be given to a CSP.", "In practice, once the designated person has determined that a notice should be given, it will be served upon a CSP in writing or, in an urgent situation, communicated to the CSP orally. 3.46. The notice should contain enough information to allow the CSP to comply with the requirements of the notice. 3.47. A notice – the original or a copy of which must be retained by the SPoC within the public authority – must: 3.48.", "A notice must not place a CSP under a duty to do anything which it is not reasonably practicable for the CSP to do. SPoCs should be mindful of the need to draft notices to ensure the description of the required data corresponds with the ways in which the CSP processes, retains and retrieves its data for lawful disclosure. CSPs cannot necessarily or reasonably edit or adapt their systems to take account of every possible variation of what may be specified in notices. 3.49. In giving notice a designated person may only require a CSP to disclose the communications data to the designated person or to a specified person working within the same public authority.", "This will normally be the public authority’s SPoC. 3.50. Ordinarily the CSP should disclose, in writing or electronically, the communications data to which a notice relates not later than the end of the period of ten working days from the date the notice is served upon the CSP. Duration of authorisations and notices 3.51. An authorisation or notice becomes valid on the date upon which authorisation is granted or notice given.", "It is then valid for a maximum of one month. This means the conduct authorised should have been commenced or the notice served within that month. 3.52. All authorisations and notices should refer to the acquisition or disclosure of data relating to a specific date(s) or period(s). Any period should be clearly indicated in the authorisation or notice.", "The start date and end date should be given, and where a precise start and end time are relevant these must be specified. Where the data to be acquired or disclosed is specified as ‘current’, the relevant date should be taken to be the date on which the authorisation was granted or the notice given by the designated person. There can be circumstances when the relevant date or period cannot be specified other than ‘the last transaction’ or ‘the most recent use of the service’. 3.53. Where an authorisation or a notice relates to the acquisition or obtaining of specific data that will or may be generated in the future, the future period is restricted to no more than one month from the date upon which the authorisation was granted or the notice given.", "3.54. Designated persons should specify the shortest possible period of time for any authorisation or notice. To do otherwise would impact on the proportionality of the authorisation or notice and impose an unnecessary burden upon the relevant CSP(s). Renewal of authorisations and notices 3.55. Any valid authorisation or notice may be renewed for a period of up to one month by the grant of a further authorisation or the giving of a further notice.", "A renewed authorisation or notice takes effect upon the expiry of the authorisation or notice it is renewing. 3.56. Renewal may be appropriate where there is a continuing requirement to acquire or obtain data that will or may be generated in the future. The reasoning for seeking renewal should be set out by an applicant in an addendum to the application upon which the authorisation or notice being renewed was granted or given. 3.57.", "Where a designated person is granting a further authorisation or giving a further notice to renew an earlier authorisation or notice, the designated person should: Cancellation of notices and withdrawal of authorisations 3.58. A designated person who has given notice to a CSP under section 22(4) of RIPA shall cancel the notice if, at any time after giving the notice, it is no longer necessary for the CSP to comply with the notice or the conduct required by the notice is no longer proportionate to what was sought to be achieved. 3.59. Reporting the cancellation of a notice to a CSP shall be undertaken by the designated person directly or, on that person’s behalf, by the public authority’s SPoC. Where human rights considerations are such that a notice should be cancelled with immediate effect the designated person or the SPoC will notify the CSP.", "3.60. Cancellation of a notice reported to a CSP must: 3.61. In cases where the SPoC has initiated the cancellation of a notice and reported the cancellation to the CSP, the designated person must confirm the decision in writing for the SPoC or, if not, in a manner that produces a record of the notice having been cancelled by the designated person. Where the designated person who gave the notice to the CSP is no longer available, this duty should fall on a person who has temporarily or permanently taken over the role of the designated person. 3.62.", "Similarly where a designated person considers an authorisation should cease to have effect, because the conduct authorised becomes unnecessary or no longer proportionate to what was sought to be achieved, the authorisation must be withdrawn. It may be the case that it is the SPoC or the applicant who is first aware that the authorisation is no longer necessary or proportionate. In such cases the SPoC (having been contacted by the applicant, where appropriate) may cease the authorised conduct, and then inform the designated person who granted the authorisation. 3.63. Withdrawal of an authorisation should: 3.64.", "When it is appropriate to do so, a CSP should be advised of the withdrawal of an authorisation, for example where details of an authorisation have been disclosed to a CSP. Urgent oral giving of notice or grant of authorisation 3.65. In exceptionally urgent circumstances, an application for the giving of a notice or the grant of an authorisation may be made by an applicant, approved by a designated person and either notice given to a CSP or an authorisation granted orally. Circumstances in which an oral notice or authorisation may be appropriate include: 3.66. The use of urgent oral process must be justified for each application within an investigation or operation.", "The fact that any part of an investigation or operation is undertaken urgently must not be taken to mean that all requirements to obtain communications data in connection with that investigation or operation be undertaken using the urgent oral process. It must be clear in each case why it was not possible, in the circumstances, to use the standard, written process. ... 3.69. Written notice must be given to the CSP retrospectively within one working day of the oral notice being given. Failure to do so will constitute an error which may be reported to the Commissioner by the CSP and must be recorded by the public authority (see the section on errors in Chapter 6, Keeping of Records, for more details).", "3.70. After the period of urgency, a separate written process must be completed demonstrating the consideration given to the circumstances and the decisions taken. The applicant or the SPoC shall collate details or copies of control room or other operational logs which provide contemporaneous records of the consideration given to the acquisition of data, decision(s) made by the designated person and the actions taken in respect of the decision(s). 3.71. In all cases where urgent oral notice is given or authorisation granted, an explanation of why the urgent process was undertaken must be recorded.", "Communications data involving certain professions 3.72. Communications data is not subject to any form of professional privilege – the fact a communication took place does not disclose what was discussed, considered or advised. 3.73. However the degree of interference with an individual’s rights and freedoms may be higher where the communications data being sought relates to a person who is a member of a profession that handles privileged or otherwise confidential information (including medical doctors, lawyers, journalists, Members of Parliament, or ministers of religion). It may also be possible to infer an issue of sensitivity from the fact someone has regular contact with, for example, a lawyer or journalist.", "3.74. Such situations do not preclude an application being made. However applicants, giving special consideration to necessity and proportionality, must draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, particularly regarding privacy and, where it might be engaged, freedom of expression. Particular care must be taken by designated persons when considering such applications, including additional consideration of whether there might be unintended consequences of such applications and whether the public interest is best served by the application. 3.75.", "Applicants must clearly note in all cases when an application is made for the communications data of those known to be in such professions, including medical doctors, lawyers, journalists, Members of Parliament, or ministers of religion. That such an application has been made must be recorded (see section 6 on keeping of records for more details), including recording the profession, and, at the next inspection, such applications should be flagged to the Interception of Communications Commissioner. 3.76. Issues surrounding the infringement of the right to freedom of expression may arise where a request is made for the communications data of a journalist. There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.", "Where an application is intended to determine the source of journalistic information, there must therefore be an overriding requirement in the public interest, and the guidance at paragraphs 3.78–3.24 should be followed. 3.77. Where the application is for communications data of a journalist, but is not intended to determine the source of journalistic information (for example, where the journalist is a victim of crime or is suspected of committing a crime unrelated to their occupation), there is nevertheless a risk of collateral intrusion into legitimate journalistic sources. In such a case, particular care must therefore be taken to ensure that the application considers whether the intrusion is justified, giving proper consideration to the public interest. The necessity and proportionality assessment also needs to consider whether alternative evidence exists, or whether there are alternative means for obtaining the information being sought.", "The application should draw attention to these matters. Applications to determine the source of journalistic information 3.78. In the specific case of an application for communications data, which is made in order to identify a journalist’s source, and until such time as there is specific legislation to provide judicial authorisation for such applications, those law enforcement agencies, including the police, National Crime Agency and Her Majesty’s Revenue and Customs, in England and Wales with powers under the Police and Criminal Evidence Act 1984 (PACE) must use the procedures of PACE to apply to a court for a production order to obtain this data. Relevant law enforcement agencies in Northern Ireland must apply for a production order under the PACE (Northern Ireland Order) 1989. Law enforcement agencies in Scotland must use the appropriate legislation or common law powers to ensure judicial authorisation for communications data applications to determine journalistic sources.", "3.79. Communications data that may be considered to determine journalistic sources includes data relating to: 3.80. Each authority must keep a central record of all occasions when such an application has been made, including a record of the considerations. 3.81. This includes that, where the police suspect wrong‑doing that includes communications with a journalist, the application must consider properly whether that conduct is criminal and of a sufficiently serious nature for rights to freedom of expression to be interfered with where communications data is to be acquired for the purpose of identifying a journalist’s source.", "3.82. As described in paragraph 3.29 above, the SPoC should be engaged in this process, to ensure appropriate engagement with the CSPs. 3.83. If and only if there is a believed to be an immediate threat of loss of human life, such that a person’s life might be endangered by the delay inherent in the process of judicial authorisation, law enforcement agencies may continue to use the existing internal authorisation process under RIPA. Such applications must be flagged to the Interception of Communications Commissioner as soon as reasonably practicable, as agreed with the Commissioner.", "If additional communications data is later sought as part of the same investigation, but where a threat to life no longer exists, judicial authorisation must be sought. 3.84. The requirement for judicial oversight does not apply where applications are made for the communications data of those known to be journalists but where the application is not to determine the source of journalistic information. This includes, for example, where the journalist is a victim of crime or is suspected of committing a crime unrelated to their occupation. Local authority authorisation procedure 3.85.", "Local authorities must fulfil two additional requirements when acquiring communications data that differ from other public authorities. Firstly, the request must be made through a SPoC at the National Anti‑Fraud Network (‘NAFN’). Secondly, the request must receive prior judicial approval. ... 6 KEEPING OF RECORDS Records to be kept by a relevant public authority 6.1. Applications, authorisations, copies of notices, and records of the withdrawal of authorisations and the cancellation of notices, must be retained by the relevant public authority in written or electronic form, and physically attached or cross‑referenced where they are associated with each other.", "The public authority should also keep a record of the date and, when appropriate to do so, the time when each notice or authorisation is given or granted, renewed or cancelled. Records kept by the public authority must be held centrally by the SPoC or in accordance with arrangements previously agreed with the Commissioner. 6.2. These records must be available for inspection by the Commissioner and retained to allow the Investigatory Powers Tribunal, established under Part IV of RIPA, to carry out its functions. 6.3.", "Where the records contain, or relate to, material obtained directly as a consequence of the execution of an interception warrant, those records must be treated in accordance with the safeguards which the Secretary of State has approved in accordance with section 15 of RIPA. ... 6.5. Each relevant public authority must also keep a record of the following information: A. the number of applications submitted by an applicant to a SPoC requesting the acquisition of communications data (including orally); B. the number of applications submitted by an applicant to a SPoC requesting the acquisition of communications data (including orally), which were referred back to the applicant for amendment or declined by the SPoC, including the reason for doing so; C. the number of applications submitted to a designated person for a decision to obtain communications data (including orally), which were approved after due consideration; D. the number of applications submitted to a designated person for a decision to obtain communications data (including orally), which were referred back to the applicant or rejected after due consideration, including the reason for doing so; E. the number of notices requiring disclosure of communications data (not including urgent oral applications); F. the number of authorisations for conduct to acquire communications data (not including urgent oral applications); G. the number of times an urgent application is approved orally; H. the number of times an urgent notice is given orally, or an urgent authorisation granted orally, requiring disclosure of communications data; I. the priority grading of the application for communications data, as set out at paragraph 3.5 and footnote 52 of this code; J. whether any part of the application relates to a person who is a member of a profession that handles privileged or otherwise confidential information (such as a medical doctor, lawyer, journalist, Member of Parliament, or minister of religion) (and if so, which profession); and K. the number of items of communications data sought, for each notice given, or authorisation granted (including orally). 6.6. For each item of communications data included within a notice or authorisation, the relevant public authority must also keep a record of the following: A. the Unique Reference Number (URN) allocated to the application, notice and/or authorisation; B. the statutory purpose for which the item of communications data is being requested, as set out at section 22(2) of RIPA; C. where the item of communications data is being requested for the purpose of preventing or detecting crime or of preventing disorder, as set out at section 22(2)(b) of RIPA, the crime type being investigated; D. whether the item of communications data is traffic data, service use information, or subscriber information, as described at section 21 (4) of RIPA, and Chapter 2 of this code; E. a description of the type of each item of communications data included in the notice or authorisation; F. whether the item of communications data relates to a victim, a witness, a complainant, or a suspect, next of kin, vulnerable person or other person relevant to the investigation or operation; G. the age of the item of communications data.", "Where the data includes more than one day, the recorded age of data should be the oldest date of the data sought; H. where an item of data is service use information or traffic data retained by the CSP, an indication of the total number of days of data being sought by means of notice or authorisation; and I. the CSP from whom the data is being acquired. 6.7. These records must be sent in written or electronic form to the Commissioner, as determined by him. Guidance on record keeping will be issued by IOCCO. Guidance may also be sought by relevant public authorities, CSPs or persons contracted by them to develop or maintain their information technology systems.", "6.8. The Interception of Communications Commissioner will not seek to publish statistical information where it appears to him that doing so would be contrary to the public interest, or would be prejudicial to national security. Records to be kept by a Communications Service Provider 6.9. To assist the Commissioner to carry out his statutory function in relation to Chapter II, CSPs should maintain a record of the disclosures it has made or been required to make. This record should be available to the Commissioner and his inspectors to enable comparative scrutiny of the records kept by public authorities.", "Guidance on the maintenance of records by CSPs may be issued by or sought from IOCCO. 6.10. The records to be kept by a CSP, in respect of each notice or authorisation, should include: A. the name of the public authority; B. the URN of the notice or authorisation; C. the date the notice was served upon the CSP or the authorisation disclosed to the CSP; D. a description of any communications data required where no disclosure took place or could have taken place; E. the date when the communications data was made available to the public authority or, where secure systems are provided by the CSP, the date when the acquisition and disclosure of communications data was undertaken; and F. sufficient records to establish the origin and exact communications data that has been disclosed in the event of later challenge in court. Errors 6.11. Proper application of RIPA and thorough procedures for operating its provisions, including the careful preparation and checking of applications, notices and authorisations, should reduce the scope for making errors whether by public authorities or by CSPs.", "6.12. An error can only occur after a designated person: 6.13. Any failure by a public authority to apply correctly the process of acquiring or obtaining communications data set out in this code will increase the likelihood of an error occurring. 6.14. Where any error occurs in the grant of an authorisation, the giving of a notice or as a consequence of any authorised conduct, or any conduct undertaken to comply with a notice, a record should be kept.", "6.15. Where an error results in communications data being acquired or disclosed wrongly, a report must be made to the Commissioner (‘a reportable error’). Such errors can have very significant consequences on an affected individual’s rights with details of their private communications being disclosed to a public authority and, in extreme circumstances, being wrongly detained or wrongly accused of a crime as a result of that error. 6.16. In cases where an error has occurred but is identified by the public authority or the CSP without data being acquired or disclosed wrongly, a record will be maintained by the public authority of such occurrences (‘recordable error’).", "These records must be available for inspection by the Commissioner. 6.17. This section of the code cannot provide an exhaustive list of possible causes of reportable or recordable errors. Examples could include: Reportable errors Recordable errors 6.18. Reporting and recording of errors will draw attention to those aspects of the process of acquisition and disclosure of communications data that require further improvement to eliminate errors and the risk of undue interference with any individual’s rights.", "6.19. When a reportable error has been made, the public authority which made the error, or established that the error had been made, must establish the facts and report the error to the authority’s senior responsible officer and then to the IOCCO within no more than five working days of the error being discovered. All errors should be reported as they arise. If the report relates to an error made by a CSP, the public authority should also inform the CSP and IOCCO of the report in written or electronic form. This will enable the CSP and IOCCO to investigate the cause or causes of the reported error.", "6.20. The report sent to the IOCCO by a public authority in relation to a reportable error must include details of the error, identified by the public authority’s unique reference number of the relevant authorisation or notice, explain how the error occurred, indicate whether any unintended collateral intrusion has taken place and provide an indication of what steps have been, or will be, taken to ensure that a similar error does not recur. When a public authority reports an error made by a CSP, the report must include details of the error and indicate whether the CSP has been informed or not (in which case the public authority must explain why the CSP has not been informed of the report). 6.21. Where a CSP discloses communications data in error, it must report each error to the IOCCO within no more than five working days of the error being discovered.", "It is appropriate for a person holding a suitably senior position within a CSP to do so, identifying the error by reference to the public authority’s unique reference number and providing an indication of what steps have been, or will be, taken to ensure that a similar error does not recur. Errors by service providers could include responding to a notice by disclosing incorrect data or by disclosing the required data to the wrong public authority. 6.22. In circumstances where a reportable error is deemed to be of a serious nature, the Commissioner may investigate the circumstances that led to the error and assess the impact of the interference on the affected individual’s rights. The Commissioner may inform the affected individual, who may make a complaint to the Investigatory Powers Tribunal (see section 9).", "6.23. The records kept by a public authority accounting for recordable errors must include details of the error, explain how the error occurred and provide an indication of what steps have been, or will be, taken to ensure that a similar error does not reoccur. The authority’s senior responsible officer must undertake a regular review of the recording of such errors. 6.24. Where material which has no connection or relevance to any investigation or operation undertaken by the public authority receiving it is disclosed in error by a CSP, that material and any copy of it (including copies contained in or as attachments in electronic mail) should be destroyed as soon as the report to the Commissioner has been made.", "... Excess Data 6.26. Where authorised conduct by a public authority results in the acquisition of excess data, or its disclosure by a CSP in order to comply with the requirement of a notice, all the data acquired or disclosed should be retained by the public authority. 6.27. Where a public authority is bound by the CPIA and its code of practice, there will be a requirement to record and retain data which is relevant to a criminal investigation, even if that data was disclosed or acquired beyond the scope of a valid notice or authorisation.", "If a criminal investigation results in proceedings being instituted all material that may be relevant must be retained at least until the accused is acquitted or convicted or the prosecutor decides not to proceed. 6.28. If, having reviewed the excess data, it is intended to make use of the excess data in the course of the investigation or operation, an applicant must set out the reason(s) for needing to use that material in an addendum to the application upon which the authorisation or notice was originally granted or given. The designated person will then consider the reason(s) and review all the data and consider whether it is necessary and proportionate for the excess data to be used in the investigation or operation. As with all communications data acquired, the requirements of the DPA and its data protection principles must also be adhered to in relation to any excess data (see next section).", "7 DATA PROTECTION SAFEGUARDS 7.1. Communications data acquired or obtained under the provisions of RIPA, and all copies, extracts and summaries of it, must be handled and stored securely. In addition, the requirements of the DPA and its data protection principles must be adhered to. 7.2. Communications data that is obtained directly as a consequence of the execution of an interception warrant must be treated in accordance with the safeguards which the Secretary of State has approved in accordance with section 15 of RIPA.", "Disclosure of communications data and subject access rights 7.3. This section of the code provides guidance on the relationship between disclosure of communications data under RIPA and the provisions for subject access requests under the DPA, and the balance between CSPs’ obligations to comply with a notice to disclose data and individuals’ right of access under section 7 of the DPA to personal data held about them. 7.4. There is no provision in RIPA preventing CSPs from informing individuals about whom they have been required by notice to disclose communications data in response to a Subject Access Request made under section 7 of the DPA. However a CSP may exercise certain exemptions to the right of subject access under Part IV of the DPA.", "7.5. Section 28 of the DPA provides that data are always exempt from section 7 where such an exemption is required for the purposes of safeguarding national security. 7.6. Section 29 of the DPA provides that personal data processed for the purposes of the prevention and detection of crime, the apprehension or prosecution of offenders, or the assessment or collection of any tax or duty or other imposition of a similar nature are exempt from section 7 to the extent to which the application of the provisions for rights of data subjects would be likely to prejudice any of those matters. 7.7.", "The exemption to subject access rights possible under section 29 does not automatically apply to the disclosure of the existence of notices given under RIPA. In the event that a CSP receives a subject access request where the fact of a disclosure under RIPA might itself be disclosed, the CSP concerned must carefully consider whether in the particular case disclosure of the fact of the notice would be likely to prejudice the prevention or detection of crime. 7.8. Where a CSP is uncertain whether disclosure of the fact of a notice would be likely to prejudice an investigation or operation, it should approach the SPoC of the public authority which gave the notice – and do so in good time to respond to the subject access request. The SPoC can make enquiries within the public authority to determine whether disclosure of the fact of the notice would likely be prejudicial to the matters in section 29.", "7.9. Where a CSP withholds a piece of information in reliance on the exemption in section 28 or 29 of the DPA, it is not obliged to inform an individual that any information has been withheld. It can simply leave out that piece of information and make no reference to it when responding to the individual who has made the subject access request. 7.10. CSPs should keep a record of the steps they have taken in determining whether disclosure of the fact of a notice would prejudice the apprehension or detection of offenders.", "This might be useful in the event of the data controller having to respond to enquiries made subsequently by the Information Commissioner, the courts and, in the event of prejudice, the police. Under section 42 of the DPA an individual may request that the Information Commissioner assesses whether a subject access request has been handled in compliance with the DPA. Acquisition of communication data on behalf of overseas authorities 7.11. While the majority of public authorities which obtain communications data under RIPA have no need to disclose that data to any authority outside the United Kingdom, there can be occasions when it is necessary, appropriate and lawful to do so in matters of international co‑operation. 7.12.", "There are two methods by which communications data, whether obtained under RIPA or not, can be acquired and disclosed to overseas public authorities: Neither method compels United Kingdom public authorities to disclose data to overseas authorities. Data can only be disclosed when a United Kingdom public authority is satisfied that it is in the public interest to do so and all relevant conditions imposed by domestic legislation have been fulfilled. Judicial co-operation 7.13. A central authority in the United Kingdom may receive a request for mutual legal assistance (MLA) which includes a request for communications data from an overseas court exercising criminal jurisdiction, an overseas prosecuting authority, or any other overseas authority that appears to have a function of making requests for MLA. This MLA request must be made in connection with criminal proceedings or a criminal investigation being carried on outside the United Kingdom, and the request for communications data included must be capable of satisfying the requirements of Part I Chapter II of RIPA.", "7.14. If such an MLA request is accepted by the central authority, it will be referred for consideration by the appropriate public authority in the UK. The application may then be considered and, if appropriate, executed by that public authority under section 22 of RIPA and in line with the guidance in this code of practice. 7.15. In order for a notice or authorisation to be granted, the United Kingdom public authority must be satisfied that the application meets the same criteria of necessity and proportionality as required for a domestic application.", "Non-judicial co-operation 7.16. Public authorities in the United Kingdom can receive direct requests for assistance from their counterparts in other countries. These can include requests for the acquisition and disclosure of communications data for the purpose of preventing or detecting crime. On receipt of such a request, the United Kingdom public authority may consider seeking the acquisition or disclosure of the requested data under the provisions of Chapter II of Part I of RIPA. 7.17.", "The United Kingdom public authority must be satisfied that the request complies with United Kingdom obligations under human rights legislation. The necessity and proportionality of each case must be considered before the authority processes the authorisation or notice. Disclosure of communications data to overseas authorities 7.18. Where a United Kingdom public authority is considering the acquisition of communications data on behalf of an overseas authority and transferring the data to that authority, it must consider whether the data will be adequately protected outside the United Kingdom and what safeguards may be needed to ensure that. Such safeguards might include attaching conditions to the processing, storage and destruction of the data.", "7.19. If the proposed transfer of data is to an authority within the European Union, that authority will be bound by the European Data Protection Directive (95/46/EC) and its national data protection legislation. Any data disclosed will be protected there without need for additional safeguards. 7.20. If the proposed transfer is to an authority outside of the European Union and the European Economic Area (Iceland, Liechtenstein and Norway), then it must not be disclosed unless the overseas authority can ensure an adequate level of data protection.", "The European Commission has determined that certain countries, for example Switzerland, have laws providing an adequate level of protection where data can be transferred without need for further safeguards. 7.21. In all other circumstances, the United Kingdom public authority must decide in each case, before transferring any data overseas, whether the data will be adequately protected there. The Information Commissioner has published guidance on sending personal data outside the European Economic Area in compliance with the Eighth Data Protection Principle, and, if necessary, his office can provide guidance. 7.22.", "The DPA recognises that it will not always be possible to ensure adequate data protection in countries outside of the European Union and the European Economic Area, and there are exemptions to the principle, for example if the transfer of data is necessary for reasons of ‘substantial public interest’. There may be circumstances when it is necessary, for example in the interests of national security, for communications data to be disclosed to a third party country, even though that country does not have adequate safeguards in place to protect the data. That is a decision that can only be taken by the public authority holding the data on a case by case basis. 8 OVERSIGHT 8.1. RIPA provides for an Interception of Communications Commissioner (‘the Commissioner’) whose remit is to provide independent oversight of the exercise and performance of the powers and duties contained under Chapter II of Part I of RIPA.", "The Commissioner is supported by his inspectors who work from the Interception of Communications Commissioner’s Office (IOCCO). 8.2. This code does not cover the exercise of the Commissioner’s functions. It is the duty of any person who uses the powers conferred by Chapter II, or on whom duties are conferred, to comply with any request made by the Commissioner to provide any information he requires for the purposes of enabling him to discharge his functions. 8.3.", "Should the Commissioner establish that an individual has been adversely affected by any wilful or reckless failure by any person within a relevant public authority exercising or complying with the powers and duties under RIPA in relation to the acquisition or disclosure of communications data, he shall, subject to safeguarding national security, inform the affected individual of the existence of the Tribunal and its role. The Commissioner should disclose sufficient information to the affected individual to enable them to engage the Tribunal effectively. 8.4. Reports made by the Commissioner concerning the inspection of public authorities and their exercise and performance of powers under Chapter II may be made available by the Commissioner to the Home Office to promulgate good practice and help identify training requirements within public authorities and CSPs. 8.5.", "Subject to the approval of the Commissioner, public authorities may publish their inspection reports, in full or in summary, to demonstrate both the oversight to which they are subject and their compliance with Chapter II of RIPA and this code. Approval should be sought on a case by case basis at least ten working days prior to intended publication, stating whether the report is to be published in full, and, if not, stating which parts are to be published or how it is to be summarised.” 3. News Group and Others v. The Commissioner of Police of the Metropolis IPT/14/176/H, 17 December 2015 118. These proceedings were brought before the IPT by three journalists and their employer. They challenged four authorisations issued under section 22 of RIPA with the purpose of enabling police to obtain communications data which might reveal sources of information obtained by the journalists.", "They argued, inter alia, that the section 22 regime (at the time supplemented by the 2007 Code of Practice) breached their rights under Article 10 of the Convention as it did not adequately safeguard the confidentiality of journalists’ sources. The IPT agreed that the regime in place at the time did not contain effective safeguards to protect Article 10 rights in a case in which the authorisation had the purpose of obtaining disclosure of the identity of a journalist’s source. It held: “107. In the absence of a requirement for prior scrutiny by a court, particular regard must be paid to the adequacy of the other safeguards prescribed by the law. The designated person is not independent of the police force, although in practice, properly complying with the requirements of s 22, he will make an independent judgement, as he did in this case.", "In general the requirement for a decision on necessity and proportionality to be taken by a senior officer who is not involved in the investigation does provide a measure of protection as to process, but the role of the designated person cannot be equated to that of an independent and impartial judge or tribunal. 108. Subsequent oversight by the Commissioner, or, in the event of a complaint, by this Tribunal, cannot after the event prevent the disclosure of a journalist’s source. This is in contrast to criminal investigations where a judge at a criminal trial may be able to exclude evidence which has been improperly or unfairly obtained by an authorisation made under s 22. Where an authorisation is made which discloses a journalist’s source that disclosure cannot subsequently be reversed, nor the effect of such disclosure mitigated.", "Nor was there any requirement in the 2007 Code for any use of s 22 powers for the purpose of obtaining disclosure of a journalist’s source to be notified to the Commissioner, so in such cases this use of the power might not be subject to any effective review. Furthermore none of the Complainants had any reason to suspect that their data had been accessed until the closing report on Operation Alice was published in September 2014. If the Respondent had not disclosed that information – and it is to his credit that he did – then the Complainants would never have been in a position to bring these proceedings. 109. So in a case involving the disclosure of a journalist’s source the safeguards provided for under s 22 and the 2007 Code were limited to requiring a decision as to necessity and proportionality to be made by a senior police officer, who was not directly involved in the investigation and who had a general working knowledge of human rights law.", "The 2007 Code imposed no substantive or procedural requirement specific to cases affecting the freedom of the press. There was no requirement that an authorisation should only be granted where the need for disclosure was convincingly established, nor that there should be very careful scrutiny balancing the public interest in investigating crime against the protection of the confidentiality of journalistic sources. The effect of s 22 and the 2007 Code was that the designated person was to make his decision on authorisation on the basis of the same general tests of necessity and proportionality which would be applied to an application in any criminal investigation.” 119. The IPT could not award any remedy in respect of the failure to provide adequate safeguards to protect Article 10 rights, as this did not in itself render the authorisations unlawful. However, it also found that one of the authorisations was unlawful, as it had been neither proportionate nor necessary.", "In considering the appropriate remedy, it acknowledged that it had the power to award compensation, but declined to do so since it did not consider it necessary to afford just satisfaction. 120. In March 2015 the 2007 Code of Practice was replaced by a new code. Paragraph 3.78 of that new ACD Code provides that in the specific case of an application for communications data, which is made in order to identify a journalist’s source, those law enforcement agencies with powers under the Police and Criminal Evidence Act 1984 (PACE) must use the procedures of PACE to apply to a court for a production order to obtain this data. 4.", "The Police and Criminal Evidence Act 1984 121. Schedule 1 of PACE governs the procedure for applying to court for a production order. It provides, as relevant: “1. If on an application made by a constable a judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below. ... 4.", "An order under this paragraph is an order that the person who appears to the judge to be in possession of the material to which the application relates shall— (a) produce it to a constable for him to take away; or (b) give a constable access to it, not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify. ... 7. An application for an order under paragraph 4 above that relates to material that consists of or includes journalistic material shall be made inter partes.” 122. Section 78 of PACE permits a court to refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. D. IPT practice and procedure 1.", "RIPA 123. The IPT was established under section 65(1) of RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act. Members must hold or have held high judicial office or be a qualified lawyer of at least ten years’ standing. 124. Section 65(2) provides that the IPT is the only appropriate forum in relation to proceedings against any of the intelligence services for acts allegedly incompatible with Convention rights, and complaints by persons who allege to have been subject to the investigatory powers of RIPA.", "It has jurisdiction to investigate any complaint that a person’s communications have been intercepted and, where interception has occurred, to examine the authority for such interception. 125. According to sections 67(2) and 67(3)(c), the IPT is to apply the principles applicable by a court on an application for judicial review. It does not, however, have power to make a Declaration of Incompatibility if it finds primary legislation to be incompatible with the European Convention on Human Rights as it is not a “court” for the purposes of section 4 of the Human Rights Act 1998. 126.", "Under section 67(8), there is no appeal from a decision of the IPT “except to such extent as the Secretary of State may by order otherwise provide”. No such order has been made by the Secretary of State. Furthermore, in R(Privacy International) v. Investigatory Powers Tribunal [2017] EWCA Civ 1868 the Court of Appeal recently confirmed that section 67(8) also had the effect of preventing a judicial review claim from being brought against a decision of the IPT. As a consequence, the IPT is a court of last resort for the purposes of the obligation to request a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (see paragraph 236 below). 127.", "Section 68(6) and (7) requires those involved in the authorisation and execution of an interception warrant to disclose or provide to the IPT all documents and information it may require. 128. Section 67(7) provides that where the IPT determines any complaint it has the power to award compensation and to make such other orders as it thinks fit, including orders quashing or cancelling any warrant and orders requiring the destruction of any records obtained thereunder. In the event that a claim before the IPT is successful, the IPT is generally required to make a report to the Prime Minister (section 68(5)). 129.", "Section 68(1) entitles the IPT to determine its own procedure, although section 69(1) provides that the Secretary of State may also make procedural rules. 2. The Investigatory Powers Tribunal Rules 2000 (“the Rules”) 130. The Rules were adopted by the Secretary of State to govern various aspects of the procedure before the IPT. 131.", "Although the IPT is under no duty to hold oral hearings, pursuant to Rule 9 it may hold, at any stage of consideration, oral hearings at which the complainant may make representations, give evidence and call witnesses. It may also hold separate oral hearings which the person whose conduct is the subject of the complaint, the public authority against which the proceedings are brought, or any other person involved in the authorisation or execution of an interception warrant may be required to attend. Rule 9 provides that the IPT’s proceedings, including any oral hearings, are to be conducted in private. 132. Rule 11 allows the IPT to receive evidence in any form, even where it would not be admissible in a court of law.", "It may require a witness to give evidence on oath, but no person can be compelled to give evidence at an oral hearing under Rule 9(3). 133. Rule 13 provides guidance on notification to the complainant of the IPT’s findings: “(1) In addition to any statement under section 68(4) of the Act, the Tribunal shall provide information to the complainant in accordance with this rule. (2) Where they make a determination in favour of the complainant, the Tribunal shall provide him with a summary of that determination including any findings of fact. ... (4) The duty to provide information under this rule is in all cases subject to the general duty imposed on the Tribunal by rule 6(1).", "(5) No information may be provided under this rule whose disclosure would be restricted under rule 6(2) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the Tribunal.” 134. Rule 6 requires the IPT to carry out its functions in such a way as to ensure that information is not disclosed in a manner that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. Pursuant to Rule 6, in principle, the IPT is not permitted to disclose: the fact that it has held an oral hearing under Rule 9(4); any information disclosed to it in the course of that hearing or the identity of any witness at that hearing; any information otherwise disclosed to it by any person involved in the authorisation or execution of interception warrants, or any information provided by a Commissioner; and the fact that any information has been disclosed or provided. However, the IPT may disclose such information with the consent of the person required to attend the hearing, the person who disclosed the information, the Commissioner, or the person whose consent was required for disclosure of the information, as the case may be. The IPT may also disclose such information as part of the information provided to the complainant under Rule 13(2), subject to the restrictions contained in Rule 13(4) and (5).", "135. In R(A) v. Director of Establishments of the Security Service [2009] EWCA Civ 24 Lord Justice Laws observed that the IPT was “a judicial body of like standing and authority to the High Court”. More recently, in R(Privacy International) v. Investigatory Powers Tribunal (cited above) Lord Justice Sales noted that “[t]he quality of the membership of the IPT in terms of judicial expertise and independence is very high”. 3. IPT ruling on preliminary issues of law 136.", "On 23 January 2003, in a case involving a complaint by British-Irish Rights Watch, the IPT gave a ruling on preliminary issues of law, in which it considered whether a number of aspects of its procedure were within the powers conferred on the Secretary of State and Convention compliant. The IPT sat, for the first time, in public. 137. Specifically on the applicability of Article 6 § 1 to the proceedings before it, the IPT found: “85. The conclusion of the Tribunal is that Article 6 applies to a person’s claims under section 65(2)(a) and to his complaints under section 65(2)(b) of RIPA, as each of them involves ‘the determination of his civil rights’ by the Tribunal within the meaning of Article 6(1).” 138.", "The IPT considered that Rule 9 made it clear that oral hearings could be held at its discretion. If a hearing was held, it had to be held in accordance with Rule 9. The absence from the Rules of an absolute right to either an inter partes oral hearing, or, failing that, to a separate oral hearing in every case was within the rule-making power in section 69(1) of RIPA and was compatible with the Convention rights under Article 6, 8 and 10. The IPT explained that oral hearings involving evidence or a consideration of the substantive merits of a claim or complaint ran the risk of breaching the “neither confirm nor deny” policy or other aspects of national security and the public interest. It was therefore necessary to provide safeguards against that and the conferring of a discretion to decide when there should be oral hearings and what form they should take was a proportionate response to the need for safeguards.", "139. The IPT found the language in Rule 9(6), which stipulates that oral hearings must be held in private, to be clear and unqualified; it therefore had no discretion in the matter. It concluded that the width and blanket nature of the rule went beyond what was authorised by section 69 of RIPA and, as a consequence, it found Rule 9(6) to be ultra vires section 69 and not binding on it. 140. The IPT also considered the requirements in Rule 6 for the taking of evidence and disclosure.", "It concluded that these departures from the adversarial model were within the power conferred on the Secretary of State and compatible with Convention rights in Articles 8 and 10, taking account of the exceptions for the public interest and national security in Articles 8(2) and 10(2), and in particular the effective operation of the legitimate policy of “neither confirm nor deny” in relation to the use of investigatory powers. It noted that disclosure of information was not an absolute right where there were competing interests, such as national security considerations. 141. Finally, as regards the absence of reasons following a negative decision, the IPT concluded that section 68(4) and Rule 13 were valid and binding and that the distinction between information given to the successful complainants and that given to unsuccessful complainants (where the “neither confirm nor deny” policy had to be preserved) was necessary and justifiable. 4.", "Counsel to the Tribunal 142. The IPT may appoint Counsel to the Tribunal to make submissions on behalf of applicants in hearings at which they cannot be represented. In the Liberty case, Counsel to the Tribunal described his role as follows: “Counsel to the Tribunal performs a different function [from special advocates in closed proceedings conducted before certain tribunals], akin to that of amicus curiae. His or her function is to assist the Tribunal in whatever way the Tribunal directs. Sometimes (e.g.", "in relation to issues on which all parties are represented), the Tribunal will not specify from what perspective submissions are to be made. In these circumstances, counsel will make submissions according to his or her own analysis of the relevant legal or factual issues, seeking to give particular emphasis to points not fully developed by the parties. At other times (in particular where one or more interests are not represented), the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented).” 143. This description was accepted and endorsed by the IPT. E. Oversight 144.", "Part IV of RIPA provided for the appointment by the Prime Minister of an Interception of Communications Commissioner and an Intelligence Services Commissioner charged with supervising the activities of the intelligence services. 145. The Interception of Communications Commissioner was responsible for keeping under review the interception of communications and the acquisition and disclosure of communications data by intelligence agencies, police forces and other public authorities. He reported to the Prime Minister on a half-yearly basis with respect to the carrying out of his functions. This report was a public document (subject to the non-disclosure of confidential annexes) which was laid before Parliament.", "In undertaking his review of surveillance practices, the Commissioner and his inspectors had access to all relevant documents, including closed materials, and all those involved in interception activities had a duty to disclose to him any material he required. The obligation on intercepting agencies to keep records ensured that the Commissioner had effective access to details of surveillance activities undertaken. 146. The Intelligence Services Commissioner also provided independent external oversight of the use of the intrusive powers of the intelligence services and parts of the Ministry of Defence. He also submitted annual reports to the Prime Minister, which were laid before Parliament.", "147. However, these provisions, insofar as they relate to England, Scotland and Wales, were repealed by the Investigatory Powers Act 2016 (see paragraphs 195-201 below) and in September 2017 the Investigatory Powers Commissioner’s Office (“IPCO”) took over responsibility for the oversight of investigatory powers. The IPCO consists of around fifteen Judicial Commissioners, current and recently retired High Court, Court of Appeal and Supreme Court Judges; a Technical Advisory Panel made up of scientific experts; and almost fifty official staff, including inspectors, lawyers and communications experts. The more intrusive powers such as interception, equipment interference and the use of surveillance in sensitive environments will be subject to the prior approval of a Judicial Commissioner once the provisions of the 2016 Act have entered into force. Use of these and other surveillance powers, including the acquisition of communications data and the use of covert human intelligence sources, are also overseen by a programme of retrospective inspection and audit by Judicial Commissioners and IPCO’s inspectors.", "F. Reviews of interception operations by the intelligence service 1. Intelligence and Security Committee of Parliament: July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme 148. The Intelligence and Security Committee of Parliament (“the ISC”) was originally established by the Intelligence Services Act 1994 to examine the policy, administration and expenditure of MI5, MI6, and GCHQ. Since the introduction of the Justice and Security Act 2013, however, the ISC was expressly given the status of a Committee of Parliament; was provided with greater powers; and its remit was increased to include inter alia oversight of operational activity and the wider intelligence and security activities of Government. Pursuant to sections 1-4 of the Justice and Security Act 2013, it consists of nine members drawn from both Houses of Parliament, and, in the exercise of their functions, those members are routinely given access to highly classified material in carrying out their duties.", "149. Following the Edward Snowden revelations, the ISC conducted an investigation into GCHQ’s access to the content of communications intercepted under the US PRISM programme, the legal framework governing access, and the arrangements GCHQ had with its overseas counterpart for sharing information. In the course of the investigation, the ISC took detailed evidence from GCHQ and discussed the programme with the NSA. 150. The ISC concluded that allegations that GCHQ had circumvented United Kingdom law by using the NSA PRISM programme to access the content of private communications were unfounded as GCHQ had complied with its statutory duties contained in the ISA.", "It further found that in each case where GCHQ sought information from the United States, a warrant for interception, signed by a Government Minister, had already been in place. However, it found it necessary to further consider whether the current statutory framework governing access to private communications remained accurate. 2. Privacy and security: a modern and transparent legal framework 151. Following its statement in July 2013, the ISC conducted a more in-depth inquiry into the full range of the intelligence services’ capabilities.", "Its report, which contained an unprecedented amount of information about the intelligence services’ intrusive capabilities, was published on 12 March 2015 (see paragraphs 11-13 above). 152. The ISC was satisfied that the United Kingdom’s intelligence and security services did not seek to circumvent the law, including the requirements of the Human Rights Act 1998, which governs everything that they do. However, it considered that as the legal framework had developed piecemeal, it was unnecessarily complicated. The ISC therefore had serious concerns about the resulting lack of transparency, which was not in the public interest.", "Consequently, its key recommendation was that the current legal framework be replaced by a new Act of Parliament which should clearly set out the intrusive powers available to the intelligence services, the purposes for which they may use them, and the authorisation required before they may do so. 153. With regard to GCHQ’s bulk interception capability, the inquiry showed that the intelligence services did not have the legal authority, the resources, the technical capability, or the desire to intercept every communication of British citizens, or of the Internet as a whole: thus, GCHQ were not reading the emails of everyone in the United Kingdom. On the contrary, GCHQ’s bulk interception systems operated on a very small percentage of the bearers that made up the Internet and the ISC was satisfied that GCHQ applied levels of filtering and selection such that only a certain amount of the material on those bearers was collected. Further targeted searches ensured that only those items believed to be of the highest intelligence value were ever presented for analysts to examine, and therefore only a tiny fraction of those collected were ever seen by human eyes.", "154. In respect of Internet communications, the ISC considered that the current system of ‘internal’ and ‘external’ communications was confusing and lacked transparency and it therefore suggested that the Government publish an explanation of which Internet communications fall under which category, including a clear and comprehensive list of communications. 155. Nevertheless, the inquiry had established that bulk interception could not be used to target the communications of an individual in the United Kingdom without a specific authorisation naming that individual, signed by a Secretary of State. 156.", "With regard to section 8(4) warrants, the ISC observed that the warrant itself was very brief. It further noted that insofar as the accompanying certificate set out the categories of communications which might be examined, those categories were expressed in very general terms (for example, “material providing intelligence on terrorism (as defined by the Terrorism Act 2000 (as amended)), including, but not limited to, terrorist organisations, terrorists, active sympathisers, attack planning, fund-raising”). Given that the certificate was so generic, the ISC questioned whether it needed to be secret or whether, in the interests of transparency, it could be published. 157. Although the section 8(4) certificate set out the general categories of information which might be examined, the ISC observed that in practice, it was the selection of the bearers, the application of simple selectors and initial search criteria, and then complex searches which determined what communications were examined.", "The ISC had therefore sought assurances that these were subject to scrutiny and review by Ministers and/or the Commissioners. However, the evidence before the ISC indicated that neither Ministers nor the Commissioners had any significant visibility of these issues. The ISC therefore recommended that the Interception of Communications Commissioner should be given statutory responsibility to review the various selection criteria used in bulk interception to ensure that they followed directly from the Certificate and valid national security requirements. 158. The ISC noted that communications data was central to most intelligence services’ investigations: it could be analysed to find patterns that reflected particular online behaviours associated with activities such as attack planning, and to establish links, to help focus on individuals who might pose a threat, to ensure that interception was properly targeted, and to illuminate networks and associations relatively quickly.", "It was particularly useful in the early stages of an investigation, when the intelligence services had to be able to determine whether those associating with a target were connected to the plot (and therefore required further investigation) or were innocent bystanders. According to the Secretary of State for the Home Department, it had “played a significant role in every Security Service counter-terrorism operation over the last decade”. Nevertheless, the ISC expressed concern about the definition of “communications data”. While it accepted that there was a category of communications data which was less intrusive than content, and therefore did not require the same degree of protection, it considered that there now existed certain categories of communications data which had the potential to reveal more intrusive details about a person’s private life and, therefore, required greater safeguards. 159.", "Finally, with regard to the IPT, it expressly recognised the importance of a domestic right of appeal. 3. “A Question of Trust”: Report of the Investigatory Powers Review by the Independent Reviewer of Terrorism Legislation (“the Anderson Report”) 160. The Independent Reviewer of Terrorism Legislation, a role that has existed since the late 1970s, is an independent person, appointed by the Home Secretary and by the Treasury for a renewable three-year term and tasked with reporting to the Home Secretary and to Parliament on the operation of counter-terrorism law in the United Kingdom. These reports are then laid before Parliament, to inform the public and political debate.", "The Independent Reviewer’s role is to inform the public and political debate on anti-terrorism law in the United Kingdom. The uniqueness of the role lies in its complete independence from government, coupled with access based on a very high degree of clearance to secret and sensitive national security information and personnel. 161. The purpose of the Anderson Report, published in June 2015 and identified by reference to the then Independent Reviewer of Terrorism Legislation, was to inform the public and political debate on the threats to the United Kingdom, the capabilities required to combat those threats, the safeguards in place to protect privacy, the challenges of changing technology, issues relating to transparency and oversight, and the case for new or amended legislation. In conducting the review the Independent Reviewer had unrestricted access, at the highest level of security clearance, to the responsible Government departments and public authorities.", "He also engaged with service providers, independent technical experts, non-governmental organisations, academics, lawyers, judges and regulators. 162. The Independent Reviewer noted that the statutory framework governing investigatory powers had developed in a piecemeal fashion, with the consequence that there were “few [laws] more impenetrable than RIPA and its satellites”. 163. With regard to the importance of communications data, he observed that it enabled the intelligence services to build a picture of a subject of interest’s activities and was extremely important in providing information about criminal and terrorist activity.", "It identified targets for further work and also helped to determine if someone was completely innocent. Of central importance was the ability to use communications data (subject to necessity and proportionality) for: (a) linking an individual to an account or action (for example, visiting a website, sending an email) through IP resolution; (b) establishing a person’s whereabouts, traditionally via cell site or GPRS data; (c) establishing how suspects or victims are communicating (that is, via which applications or services); (d) observing online criminality (for example, which websites are being visited for the purposes of terrorism, child sexual exploitation or purchases of firearms or illegal drugs); and (e) exploiting data (for example, to identify where, when and with whom or what someone was communicating, how malware or a denial of service attack was delivered, and to corroborate other evidence). 164. Moreover, analysis of communications data could be performed speedily, making it extremely useful in fast-moving operations, and use of communications data could build a case for using a more intrusive measure, or deliver the information that would make other measures unnecessary. 165.", "His proposals for reform can be summarised as follows: (a) A comprehensive and comprehensible new law should be drafted, replacing “the multitude of current powers” and providing clear limits and safeguards on any intrusive power it may be necessary for public authorities to use; (b) The definitions of “content” and “communications data” should be reviewed, clarified and brought up-to-date; (c) The capability of the security and intelligence agencies to practice bulk collection of intercepted material and associated communications data should be retained, but only subject to strict additional safeguards including the authorisation of all warrants by a Judicial Commissioner at a new Independent Surveillance and Intelligence Commission (“ISIC”); (d) The purposes for which material or data was sought should be spelled out in the accompanying certificate by reference to specific operations or mission purposes (for example, “attack planning by ISIL in Iraq/Syria against the UK”); (e) There should be a new form of bulk warrant limited to the acquisition of communications data which could be a proportionate option in certain cases; (f) Regarding the authorisation for the acquisition of communications data, designated persons should be required by statute to be independent from the operations and investigations in relation to which the authorisation is sought; (g) Novel or contentious requests for communications data, or requests for the purpose of determining matters that are privileged or confidential, should be referred to the ISIC for determination by a Judicial Commissioner; (h) The ISIC should take over intelligence oversight functions and should be public-facing, transparent and accessible to the media; and (i) The IPT should have the capacity to make declarations of incompatibility and its rulings should be subject to appeals on points of law. 4. A Democratic Licence to Operate: Report of the Independent Surveillance Review (“ISR”) 166. The ISR was undertaken by the Royal United Services Institute, an independent think-tank, at the request of the then deputy Prime Minister, partly in response to the revelations by Edward Snowden. Its terms of reference were to look at the legality of United Kingdom surveillance programmes and the effectiveness of the regimes that govern them, and to suggest reforms which might be necessary to protect both individual privacy and the necessary capabilities of the police and security and intelligence services.", "167. Despite the revelations by Edward Snowden, having completed its review the ISR found no evidence that the British Government was knowingly acting illegally in intercepting private communications, or that the ability to collect data in bulk was being used by the Government to provide it with a perpetual window into the private lives of British citizens. On the other hand, it found evidence that the present legal framework authorising the interception of communications was unclear, had not kept pace with developments in communications’ technology, and did not serve either the Government or members of the public satisfactorily. It therefore concluded that a new, comprehensive and clearer legal framework was required. 168.", "In particular, it supported the view set out in both the ISC and Anderson reports that while the current surveillance powers were needed, both a new legislative framework and oversight regime were required. It further considered that the definitions of “content” and “communications data” should be reviewed as part of the drafting of the new legislation so that they could be clearly delineated in law. 169. With regard to communications data, the report noted that greater volumes were available on an individual relative to content, since every piece of content was surrounded by multiple pieces of communications data. Furthermore, aggregating data sets could create an extremely accurate picture of an individual’s life since, given enough raw data, algorithms and powerful computers could generate a substantial picture of the individual and his or her patterns of behaviour without ever accessing content.", "In addition, the use of increasingly sophisticated encryption methods had made content increasingly difficult to access. 170. It further considered that the capability of the security and intelligence services to collect and analyse intercepted material in bulk should be maintained, but with the stronger safeguards recommended in the Anderson Report. In particular, it agreed that warrants for bulk interception should include much more detail than is currently the case and should be the subject of a judicial authorisation process, save for when there is an urgent requirement. 171.", "In addition, it agreed with both the ISC and the Anderson report that there should be different types of warrant for the interception and acquisition of communications and related data. It was proposed that warrants for a purpose relating to the detection or prevention of serious and organised crime should always be authorised by a Judicial Commissioner, while warrants for purposes relating to national security should be authorised by the Secretary of State subject to judicial review by a Judicial Commissioner. 172. With regard to the IPT, the ISR recommended open public hearings, except where it was satisfied private or closed hearings were necessary in the interests of justice or other identifiable public interest. Furthermore, it should have the ability to test secret evidence put before it, possibly through the appointment of Special Counsel.", "Finally, it agreed with the ISC and Anderson reports that a domestic right of appeal was important and should be considered in future legislation. 5. Report of the Bulk Powers Review 173. The bulk powers review was set up in May 2016 to evaluate the operational case for the four bulk powers contained in what was then the Investigatory Powers Bill (now the Investigatory Powers Act 2016: see paragraphs 195-201 below). Those powers related to bulk interception and the bulk acquisition of communications data, bulk equipment interference and the acquisition of bulk personal datasets.", "174. The review was again carried out by the Independent Reviewer of Terrorism Legislation. To conduct the review he recruited three team members, all of whom had the necessary security clearance to access very highly classified material, including a person with the necessary technical background to understand the systems and techniques used by GCHQ, and the uses to which they could be put; an investigator with experience as a user of secret intelligence, including intelligence generated by GCHQ; and senior independent counsel with the skills and experience to challenge forensically the evidence and the case studies presented by the security and intelligence services. 175. In conducting their review, the team had significant and detailed contact with the intelligence services at all levels of seniority as well as the relevant oversight bodies (including the IPT and Counsel to the Tribunal in the relevant cases), NGOs and independent technical experts.", "176. Although the review was of the Investigatory Powers Bill, a number of its findings in respect of bulk interception are relevant to the case at hand. In particular, having examined a great deal of closed material, the review concluded that it was an essential capability: first, because terrorists, criminal and hostile foreign intelligence services had become increasingly sophisticated at evading detection by traditional means; and secondly, because the nature of the global Internet meant that the route a particular communication would travel had become hugely unpredictable. The review team looked at alternatives to bulk interception (including targeted interception, the use of human sources and commercial cyber-defence products) but concluded that no alternative or combination of alternatives would be sufficient to substitute for the bulk interception power as a method of obtaining the necessary intelligence. 6.", "Attacks in London and Manchester March-June 2017: Independent Assessment of MI5 and Police Internal Reviews 177. Following a series of four terrorist attacks in the short period between March and June 2017, in the course of which some 36 innocent people were killed and almost 200 more were injured, the Home Secretary asked the recently retired Independent Reviewer of Terrorism Legislation, David Anderson Q.C. to assess the classified internal reviews of the police and intelligence services involved. In placing the attacks in context, the Report made the following observations: “1.2 The attacks under review were the most deadly terrorist attacks on British soil since the 7/7 London tube and bus bombings of July 2005. All four were shocking for their savagery and callousness.", "The impact of the first three attacks was increased by the fact that they came at the end of a long period in which Islamist terrorism had taken multiple lives in neighbouring countries such as France, Belgium and Germany but had not enjoyed equivalent success in Britain. 1.3 The plots were part of an increasingly familiar pattern of Islamist and (to a lesser extent) anti-Muslim terrorist attacks in western countries, including in particular northern Europe. The following points provide context, and an indication that lessons learned from these incidents are likely to be transferrable. 1.4 First, the threat level in the UK from so-called “international terrorism” (in practice, Islamist terrorism whether generated at home or abroad) has been assessed by the Joint Terrorism Analysis Centre (JTAC) as SEVERE since August 2014, indicating that Islamist terrorist attacks in the UK are “highly likely”. Commentators with access to the relevant intelligence have always been clear that this assessment is realistic.", "They have pointed also to the smaller but still deadly threat from extreme right wing (XRW) terrorism, exemplified by the murder of Jo Cox MP in June 2016 and by the proscription of the neo-Nazi group National Action in December 2016. 1.5 Secondly, the growing scale of the threat from Islamist terrorism is striking. The Director General of MI5, Andrew Parker, spoke in October 2017 of “a dramatic upshift in the threat this year” to “the highest tempo I’ve seen in my 34 year career”. Though deaths from Islamist terrorism occur overwhelmingly in Africa, the Middle East and South Asia, the threat has grown recently across the western world, and has been described as “especially diffuse and diverse in the UK”. It remains to be seen how this trend will be affected, for good or ill, by the physical collapse of the so-called Islamic State in Syria and Iraq.", "1.6 Thirdly, the profiles of the attackers ... display many familiar features. Comparing the five perpetrators of the Westminster, Manchester and London Bridge attacks with those responsible for the 269 Islamist-related terrorist offences in the UK between 1998-2015, as analysed by Hannah Stuart (“the total”): (a) All were male, like 93% of the total. (b) Three were British (Masood, Abedi, Butt), like 72% of the total. (c) One was a convert to Islam (Masood), like 16% of the total. (d) Three resided in London (43% of the total) and one in North West England (10% of the total).", "(e) Three (Masood, and to a more limited extent Abedi and Butt) were known to the police, like 38% of the total. (f) The same three were known to MI5, like 48% of the total. (g) At least one (Butt) had direct links to a proscribed terrorist organisation, as had 44% of the total. His links, in common with 56% of the total who had links with such organisations, were with Al-Muhajiroun (ALM). In view of their possible pending trials I say nothing of Hashem Abedi, currently detained in Libya in connection with the Manchester attack, or of the Finsbury Park attacker Darren Osborne who (like Khalid Masood at Westminster) is not alleged to have had accomplices.", "1.7 Fourthly, though the targets of the first three attacks did not extend to the whole of the current range, they had strong similarities to the targets of other recent western attacks: political centres (e.g. Oslo 2011, Ottawa 2014, Brussels 2016); concert-goers, revellers and crowds (e.g. Orlando 2016, Paris 2016, Barcelona 2017); and police officers (e.g. Melbourne 2014, Berlin 2015, Charleroi 2016). There are precedents also for attacks on observant Muslims which have crossed the boundary from hate crime to terrorism, including the killing of Mohammed Saleem in the West Midlands in 2013.", "1.8 Fifthly, the modus operandi (MO) of terrorist attacks has diversified and simplified over the years, as Daesh has employed its formidable propaganda effort to inspire rather than to direct acts of terrorism in the west. The attacks under review were typical in style for their time and place: (a) Unlike the large, directed Islamist plots characteristic of the last decade, all four attacks were committed by lone actors or small groups, with little evidence of detailed planning or precise targeting. (b) Strong gun controls in the UK mean that bladed weapons are more commonly used than firearms in gang-related and terrorist crime. (c) Since a truck killed 86 innocent people in Nice (July 2016), vehicles – which featured in three of the four attacks under review – have been increasingly used as weapons. (d) The combination of a vehicle and bladed weapons, seen at Westminster and London Bridge, had previously been used to kill the soldier Lee Rigby (Woolwich, 2013).", "(e) Explosives, used in Manchester, were the most popular weapon for Islamist terrorists targeting Europe between 2014 and 2017. The explosive TATP has proved to be capable of manufacture (aided by on-line purchases and assembly instructions) more easily than was once assumed.” 7. Annual Report of the Interception of Communications Commissioner for 2016 (a) Section 8(4) warrants 178. The Commissioner observed that when conducting interception under a section 8(4) warrant, an intercepting agency had to use its knowledge of the way in which international communications were routed, combined with regular surveys of relevant communications links, to identify those individual communications bearers that were most likely to contain external communications that would meet the descriptions of material certified by the Secretary of State under section 8(4). It also had to conduct the interception in ways that limited the collection of non-external communications to the minimum level compatible with the objective of intercepting the wanted external communications.", "179. He further observed that prior to analysts being able to read, look at or listen to material, they had to provide a justification, which included why access to the material was required, consistent with, and pursuant to section 16 and the applicable certificate, and why such access was proportionate. Inspections and audits showed that although the selection procedure was carefully and conscientiously undertaken, it relied on the professional judgment of analysts, their training and management oversight. 180. According to the report, 3007 interception warrants were issued in 2016 and five applications were refused by a Secretary of State.", "In the view of the Commissioner, these figures did not capture the critical quality assurance function initially carried out by the staff and lawyers within the intercepting agency or the warrant-granting department (the warrant-granting departments were a source of independent advice to the Secretary of State and performed pre-authorisation scrutiny of warrant applications and renewals to ensure that they were (and remained) necessary and proportionate). Based on his inspections, he was confident that the low number of rejections reflected the careful consideration given to the use of these powers. 181. A typical inspection of an interception agency included the following: 182. After each inspection, inspectors produced a report, including: 183.", "During 2016, the Commissioner’s office inspected all nine interception agencies once and the four main warrant-granting departments twice. This, together with extra visits to GCHQ, made a total of twenty-two inspection visits. In addition, he and his inspectors arranged other ad hoc visits to agencies. 184. Inspection of the systems in place for applying for and authorising interception warrants usually involved a three-stage process.", "First, to achieve a representative sample of warrants, inspectors selected them across different crime types and national security threats. In addition, inspectors focussed on those of particular interest or sensitivity (such as those which gave rise to an unusual degree of collateral intrusion, those which have been extant for a considerable period, those which were approved orally, those which resulted in the interception of legal or otherwise confidential communications, and so-called ‘thematic’ warrants). Secondly, inspectors scrutinised the selected warrants and associated documentation in detail during reading days which preceded the inspections. Thirdly, they identified those warrants, operations or areas of the process which required further information or clarification and arranged to interview relevant operational, legal or technical staff. Where necessary, they examined further documentation or systems relating to those warrants.", "185. 970 warrants were examined during the twenty-two interception inspections (sixty-one percent of the number of warrants in force at the end of the year and thirty-two percent of the total of new warrants issued in 2016). 186. According to the report, every interception agency had a different view on what constituted an appropriate retention period for intercepted material and related communications data. There was no period prescribed by the legislation, but the agencies had to consider section 15(3) of RIPA, which provided that the material or data had to be destroyed as soon as retaining it was no longer necessary for any of the authorised purposes in section 15(4).", "The vast majority of content was reviewed and automatically deleted after a very short period of time unless specific action was taken to retain the content for longer because it was necessary to do so. The retention periods differed within the interception agencies and ranged between thirty days and one year. The retention periods for related communications data also differed within the interception agencies, but ranged between six months and one year. 187. Inspectors made a total of twenty-eight recommendations in their inspection reports, eighteen of which were made in relation to the application process.", "The majority of the recommendations in this category related to the necessity, proportionality and/or collateral intrusion justifications in the applications; or the handling of legally privileged or otherwise confidential material relating to sensitive professions. 188. The total number of interception errors reported to the Commissioner during 2016 was 108. Key causes of interception errors were over-collection (generally technical software or hardware errors that caused over-collection of intercepted material and related communications data), unauthorised selection/examination, incorrect dissemination, the failure to cancel interception, and the interception of either an incorrect communications address or person. (b) Acquisition of communications data under Chapter II of RIPA 189.", "According to the report, police forces and law enforcement agencies were responsible for acquiring ninety-three percent of the total number of items of data in 2016, six percent was acquired by intelligence services and the remaining one percent was acquired by other public authorities, including local authorities. Fifty percent of the data acquired was subscriber information, forty-eight percent was traffic data and two percent service use information. Most of the acquired items of data (eighty-one percent) related to telephony, such as landlines or mobile phones. Internet identifiers, for example email or IP addresses, accounted for fifteen percent of the acquired data and two percent of requests were related to postal identifiers. 190.", "With regard to the purpose of the request, eighty-three percent of the items of data were acquired for the purpose of preventing or detecting crime or preventing disorder; eleven percent were acquired for the purpose of preventing death or injury or damage to a person’s mental health, or of mitigating any injury or damage to a person’s physical or mental health; and six percent were acquired in the interests of national security. 191. Furthermore, approximately seventy percent of data requests were for data less than three months old, twenty-five percent aged between three months and one year, and six percent for data over twelve months old. Eighty-one percent of the requests required data for a communications address for periods of three months or less (for example, three months of incoming and outgoing call data for a communications address). Twenty-five percent of all requests were for data relating to a period of less than one day.", "192. Twenty-seven percent of submitted applications were returned to the applicant by the Single Point of Contact (“SPoC”) for development and a further five percent were declined by the SPoC. Reasons for refusing data applications included: lack of clarity; failure to link the crime to the communications address; and insufficient justification for collateral intrusion. Four percent of submitted applications were returned to applicants by designated persons for further development and one percent was rejected. The main reason for designated persons returning or rejecting applications was that they were not satisfied with the necessity or proportionality justifications given (fifty-two percent).", "A significant number of applications were returned because designated persons were not satisfied with the overall quality or clarity of the application (twenty-one percent). Other reasons for rejection included the designated persons declaring that they were not independent of the investigation and requesting that the application be forwarded to an independent designated person for consideration (six percent). 193. In 2016 forty-seven public authorities advised that they had made a total of 948 applications that related to persons who were members of sensitive professions. A significant proportion of these 948 applications were categorised incorrectly (that is, the applicant had recorded a sensitive profession when there was not one).", "This was usually because the applicant erred on the side of caution, recording a sensitive profession if there was a possibility of one, rather than because they knew that there was one, a fact which provided the Commissioner with “a greater level of assurance that [designated persons] are taking sensitive professions into account when necessary”. Furthermore, according to the Commissioner, most applications relating to members of sensitive professions were submitted because the individual had been a victim of crime or was the suspect in a criminal investigation. In these cases, the profession of the individual was usually not relevant to the investigation, but public authorities showed proper consideration of the sensitive profession by bringing it to the attention of the authorising officer. 194. Having considered the “reportable errors”, the Commissioner noted that the number of serious errors remained very low (0.004%).", "G. The Investigatory Powers Act 2016 195. The Investigatory Powers Act 2016 received Royal Assent on 29 November 2016. 196. On 30 December 2016 Part 4 of the 2016 Act, which included a power to issue “retention notices” to telecommunications operators requiring the retention of data, came into force (although not in its entirety). Following a legal challenge by Liberty, the Government conceded that Part 4 of the IPA was, in its current form, inconsistent with the requirements of EU law.", "Part 4 was not amended and on 27 April 2018 the High Court found Part 4 to be incompatible with fundamental rights in EU law since, in the area of criminal justice, access to retained data was not limited to the purpose of combating “serious crime”; and access to retained data was not subject to prior review by a court or an independent administrative body. The court concluded that the legislation had to be amended by 1 November 2018. 197. On 13 February 2017 the provisions of the IPA relating to the appointment of the Investigatory Powers Commissioner and other Judicial Commissioners came into force. On 3 March 2017, the Government appointed the first Investigatory Powers Commissioner (a judge currently sitting on the Court of Appeal and former justice of the International Criminal Court) for a three-year term and he took up appointment with immediate effect.", "The newly created Investigatory Powers Commissioners Office (“ICPO”) commenced operations on 8 September 2017 and is ultimately due to consist of around 70 staff (including approximately fifteen judicial commissioners made up of current and recently retired judges of the High Court, Court of Appeal and Supreme Court, and a technical advisory panel of scientific experts). 198. The remainder of the 2016 Act is not yet in force. 199. In terms of safeguards, when it enters into force in full the Act will require that bulk interception and bulk equipment interference warrants may only be issued where the main purpose of the interception is to acquire intelligence relating to individuals outside the United Kingdom, even where the conduct occurs within the United Kingdom.", "Similarly, interference with the privacy of persons in the United Kingdom will be permitted only to the extent that it is necessary for that purpose. It will also introduce a “double-lock” for the most intrusive surveillance powers, meaning that a warrant issued by the Secretary of State will also require the approval of one of the appointed Judicial Commissioners. There will also be new protections for journalistic and legally privileged material, including a requirement for judicial authorisation for the acquisition of communications data identifying journalists’ sources; tough sanctions for the misuse of powers, including the creation of new criminal offences; and a right of appeal from the IPT. 200. In addition, the new Act will consolidate and update the powers available to the State to obtain communications and communications data.", "It will provide an updated framework for the use (by the security and intelligence services, law enforcement and other public authorities) of investigatory powers to obtain communications and communications data. These powers cover the interception of communications, the retention and acquisition of communications data, and equipment interference for obtaining communications and other data. The Act also makes provision relating to the security and intelligence services’ retention and examination of bulk personal datasets. 201. On 23 February 2017 the Home Office launched a public consultation on the five draft codes of practice it intends to issue under the 2016 Act (on the Interception of Communications, Equipment Interference, Bulk Communications Data Acquisition, Retention and Use of Bulk Personal Datasets by the Security and Intelligence Agencies and National Security Notices), which will set out the processes and safeguards governing the use of investigatory powers by public authorities.", "They will give detail on how the relevant powers should be used, including examples of best practice. They are intended to provide additional clarity and to ensure the highest standards of professionalism and compliance with the relevant legislation. Following the closure of the consultation on 6 April 2017, the draft codes were further amended and Regulations bringing them into force will be laid and debated before Parliament. They will only come into force when they have been debated in both Houses of Parliament and approved by a resolution in both Houses. H. Relevant international law 1.", "The United Nations (a) Resolution no. 68/167 on The Right to Privacy in the Digital Age 202. Resolution no. 68/167, adopted by the General Assembly on 18 December 2013, reads as follows: “The General Assembly, ... 4. Calls upon all States: ... (c) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law; (d) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data ...” (b) The Constitution of the International Telecommunication Union 1992 203.", "Articles 33 and 37 of the Constitution provide as follows: The Right of the Public to Use the International Telecommunication Service “Member States recognize the right of the public to correspond by means of the international service of public correspondence. The services, the charges and the safeguards shall be the same for all users in each category of correspondence without any priority or preference. ...” Secrecy of Telecommunications “1. Member States agree to take all possible measures, compatible with the system of telecommunication used, with a view to ensuring the secrecy of international correspondence. 2.", "Nevertheless, they reserve the right to communicate such correspondence to the competent authorities in order to ensure the application of their national laws or the execution of international conventions to which they are parties.” (c) The 2006 Annual Report of the International Law Commission 204. In its 2006 Annual Report the ILC proposed to include the topic “Protection of personal data in the transborder flow of information” in its long-term programme of work. The Secretariat’s supporting report (Annex D) identifies a number of core principles of public international law: Core principles “23. A number of core principles are discernible from developments in this field in almost forty-years. Such principles include the following: Lawful and fair data collection and processing: This principle presupposes that the collection of personal data would be restricted to a necessary minimum.", "In particular such data should not be obtained unlawfully or through unfair means; Accuracy: The information quality principle is a qualitative requirement and entails a responsibility that the data be accurate, and necessarily complete and up to date for the purpose intended. Purpose specification and limitation: This principle establishes the requirement that the purpose for which the data are collected should be specified to the data subject. Data should not be disclosed, made available or otherwise used for purposes other than those specified. It has to be done with the consent or knowledge of the data-subject or under the operation of the law. Any subsequent use is limited to such purpose, or any other that is not incompatible with such purpose.", "Differences lie in the approaches taken by States. Some jurisdictions perceive the obligation for consent to be ex ante. Proportionality: Proportionality requires that the necessary measure taken should be proportionate to the legitimate claims being pursued. Transparency: Denotes a general policy of openness regarding developments, practices and policies with respect to protection of personal data. Individual participation and in particular the right to access: This principle may be the most important for purposes of data protection.", "The individual should have access to such data; as well as to the possibility of determining whether or not the keeper of the file has data concerning him; to obtain such information or to have it communicated to him in a form, in a manner and at a cost that is reasonable. This accords with the right of an individual to know about the existence of any data file, its contents, to challenge the data and to have it corrected, amended or erased. Non-discrimination: This principle connotes that data likely to give rise to unlawful and arbitrary discrimination should not be compiled. This includes information collated on racial or ethnic origin, colour, sex life, political opinions, religious, philosophical and other beliefs as well as membership of an association or trade union. Responsibility: This principle embraces data security; data should be protected by reasonable and appropriate measures to prevent their loss, destruction, unauthorized access, use, modification or disclosure and the keeper of the file should be accountable for it.", "Independent supervision and legal sanction: Supervision and sanction require that there should be a mechanism for ensuring due process and accountability. There should be an authority accountable in law for giving effect to the requirements of data protection. Data equivalency in the case of transborder flow of personal data: This is a principle of compatibility; it is intended to avoid the creation of unjustified obstacles and restrictions to the free flow of data, as long as the circulation is consistent with the standard or deemed adequate for that purpose. The principle of derogability: This entails power to make exceptions and impose limitations if they are necessary to protect national security, public order, public health or morality or to protect the rights of others.” Derogability “24. While privacy concerns are of critical importance, such concerns have to be balanced with other value-interests.", "The privacy values to avoid embarrassment, to construct intimacy and to protect against misuse associated with the need to protect the individual have to be weighed against other counter-values against individual control over personal information; such as the need not to disrupt the flow of international trade and commerce and the flow of information; the importance of securing the truth, as well as the need to be live in secure environment. There are allowable restrictions and exceptions, for example, with respect to national security, public order (ordre public), public health or morality or in order to protect the rights and freedoms of others, as well as the need for effective law enforcement and judicial cooperation in combating crimes at the international level, including the threats posed by international terrorism and organized crime. 25. The processing of personal data must be interpreted in accordance with human rights principles. Accordingly, any of the objectives in the public interest would justify interference with private life if it is (a) in accordance with the law, (b) is necessary in a democratic society for the pursuit of legitimate aims, and (c) is not disproportionate to the objective pursued.", "The phrase “in accordance with the law” goes beyond to the formalism of having in existence a legal basis in domestic law, it requires that the legal basis be “accessible” and foreseeable”. Foreseeability necessitates sufficiency of precision in formulation of the rule to enable any individual to regulate his conduct.” 2. The Council of Europe (a) The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 205. The Convention, which entered into force in respect of the United Kingdom on 1 December 1987, sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors. It provides, insofar as relevant: Preamble “The member States of the Council of Europe, signatory hereto, Considering that the aim of the Council of Europe is to achieve greater unity between its members, based in particular on respect for the rule of law, as well as human rights and fundamental freedoms; Considering that it is desirable to extend the safeguards for everyone’s rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing flow across frontiers of personal data undergoing automatic processing; Reaffirming at the same time their commitment to freedom of information regardless of frontiers; Recognising that it is necessary to reconcile the fundamental values of the respect for privacy and the free flow of information between peoples, Have agreed as follows:” Article 1 – Object and purpose “The purpose of this Convention is to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (“data protection”).", "...” Article 8 – Additional safeguards for the data subject “Any person shall be enabled: a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention; d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.” Article 9 – Exceptions and restrictions “1. No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this article. 2. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others. ...” Article 10 – Sanctions and remedies “Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.” 206.", "The Explanatory Report explains that: Article 9 – Exceptions and restrictions “55. Exceptions to the basic principles for data protection are limited to those which are necessary for the protection of fundamental values in a democratic society. The text of the second paragraph of this article has been modelled after that of the second paragraphs of Articles 6, 8, 10 and 11 of the European Human Rights Convention. It is clear from the decisions of the Commission and the Court of Human Rights relating to the concept of \"necessary measures\" that the criteria for this concept cannot be laid down for all countries and all times, but should be considered in the light of the given situation in each country. 56.", "Littera a in paragraph 2 lists the major interests of the State which may require exceptions. These exceptions are very specific in order to avoid that, with regard to the general application of the convention, States would have an unduly wide leeway. States retain, under Article 16, the possibility to refuse application of the convention in individual cases for important reasons, which include those enumerated in Article 9. The notion of \"State security\" should be understood in the traditional sense of protecting national sovereignty against internal or external threats, including the protection of the international relations of the State.” (b) The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181) 207.", "The Protocol, which has not been ratified by the United Kingdom, provides, insofar as relevant: Article 1 – Supervisory authorities “1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol. 2.a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol. b.", "Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence. 3. The supervisory authorities shall exercise their functions in complete independence. 4. Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts.", "...” Article 2 – Transborder flows of personal data to a recipient which is not subject to the jurisdiction of a Party to the Convention “1. Each Party shall provide for the transfer of personal data to a recipient that is subject to the jurisdiction of a State or organisation that is not Party to the Convention only if that State or organisation ensures an adequate level of protection for the intended data transfer. 2. By way of derogation from paragraph 1 of Article 2 of this Protocol, each Party may allow for the transfer of personal data: a. if domestic law provides for it because of: – specific interests of the data subject, or – legitimate prevailing interests, especially important public interests, or b. if safeguards, which can in particular result from contractual clauses, are provided by the controller responsible for the transfer and are found adequate by the competent authorities according to domestic law.” (c) Recommendation of the Committee of Ministers on the protection of personal data in the area of telecommunication services 208. This Recommendation (No.", "R (95) 4 of the Committee of Ministers), which was adopted on 7 February 1995, reads, insofar as relevant, as follows: “2.4. Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of: a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others. 2.5. In the case of interference by public authorities with the content of a communication, domestic law should regulate: a. the exercise of the data subject’s rights of access and rectification; b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it; c. storage or destruction of such data. If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference.” (d) The 2001 (Budapest) Convention on Cybercrime 209.", "The Convention provides, insofar as relevant: Preamble “The member States of the Council of Europe and the other States signatory hereto, ... Convinced of the need to pursue, as a matter of priority, a common criminal policy aimed at the protection of society against cybercrime, inter alia, by adopting appropriate legislation and fostering international co-operation; Conscious of the profound changes brought about by the digitalisation, convergence and continuing globalisation of computer networks; Concerned by the risk that computer networks and electronic information may also be used for committing criminal offences and that evidence relating to such offences may be stored and transferred by these networks; Recognising the need for co-operation between States and private industry in combating cybercrime and the need to protect legitimate interests in the use and development of information technologies; Believing that an effective fight against cybercrime requires increased, rapid and well-functioning international co-operation in criminal matters; Convinced that the present Convention is necessary to deter action directed against the confidentiality, integrity and availability of computer systems, networks and computer data as well as the misuse of such systems, networks and data by providing for the criminalisation of such conduct, as described in this Convention, and the adoption of powers sufficient for effectively combating such criminal offences, by facilitating their detection, investigation and prosecution at both the domestic and international levels and by providing arrangements for fast and reliable international co-operation; Mindful of the need to ensure a proper balance between the interests of law enforcement and respect for fundamental human rights as enshrined in the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights and other applicable international human rights treaties, which reaffirm the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy; Mindful also of the right to the protection of personal data, as conferred, for example, by the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data; ... Article 2 – Illegal access “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the access to the whole or any part of a computer system without right. A Party may require that the offence be committed by infringing security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer system that is connected to another computer system.” Article 3 – Illegal interception “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data. A Party may require that the offence be committed with dishonest intent, or in relation to a computer system that is connected to another computer system.” Article 4 – Data interference “1.", "Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the damaging, deletion, deterioration, alteration or suppression of computer data without right. 2. A Party may reserve the right to require that the conduct described in paragraph 1 result in serious harm. ...” Article 15 – Conditions and safeguards “1. Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.” 210.", "The Explanatory Report explains that: “38. A specificity of the offences included is the express requirement that the conduct involved is done \"without right\". It reflects the insight that the conduct described is not always punishable per se, but may be legal or justified not only in cases where classical legal defences are applicable, like consent, self-defence or necessity, but where other principles or interests lead to the exclusion of criminal liability. The expression \"without right\" derives its meaning from the context in which it is used. Thus, without restricting how Parties may implement the concept in their domestic law, it may refer to conduct undertaken without authority (whether legislative, executive, administrative, judicial, contractual or consensual) or conduct that is otherwise not covered by established legal defences, excuses, justifications or relevant principles under domestic law.", "The Convention, therefore, leaves unaffected conduct undertaken pursuant to lawful government authority (for example, where the Party’s government acts to maintain public order, protect national security or investigate criminal offences). Furthermore, legitimate and common activities inherent in the design of networks, or legitimate and common operating or commercial practices should not be criminalised. Specific examples of such exceptions from criminalisation are provided in relation to specific offences in the corresponding text of the Explanatory Memorandum below. It is left to the Parties to determine how such exemptions are implemented within their domestic legal systems (under criminal law or otherwise). ... “58.", "For criminal liability to attach, the illegal interception must be committed \"intentionally\", and \"without right\". The act is justified, for example, if the intercepting person has the right to do so, if he acts on the instructions or by authorisation of the participants of the transmission (including authorised testing or protection activities agreed to by the participants), or if surveillance is lawfully authorised in the interests of national security or the detection of offences by investigating authorities.” (e) The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies 211. The Venice Commission noted, at the outset, the value that bulk interception could have for security operations, since it enabled the security services to adopt a proactive approach, looking for hitherto unknown dangers rather than investigating known ones. However, it also noted that intercepting bulk data in transmission, or requirements that telecommunications companies store and then provide telecommunications content data or metadata to law-enforcement or security agencies involved an interference with the privacy and other human rights of a large proportion of the population of the world. In this regard, the Venice Commission considered that the main interference with privacy occurred when stored personal data was accessed and/or processed by the agencies.", "For this reason, the computer analysis (usually with the help of selectors) was one of the important stages for balancing personal integrity concerns against other interests. 212. According to the report, the two most significant safeguards were the authorisation process (of collection and access) and the oversight process. It was clear from the Court’s case-law that the latter must be performed by an independent, external body. While the Court had a preference for judicial authorisation, it had not found this to be a necessary requirement.", "Rather, the system had to be assessed as a whole, and where independent controls were absent at the authorisation stage, particularly strong safeguards had to exist at the oversight stage. In this regard, the Venice Commission considered the example of the system in the United States, where authorisation was given by the Foreign Intelligence Surveillance Court. However, it noted that despite the existence of judicial authorisation, the lack of independent oversight of the court’s conditions was problematic. 213. Similarly, the Commission observed that notification of the subject of surveillance was not an absolute requirement of Article 8 of the Convention.", "In this regard, a general complaints procedure to an independent oversight body could compensate for non-notification. 214. The report also considered internal controls to be a “primary safeguard”. In this regard, recruitment and training were key issues; in addition, it was important for the agencies to build in respect for privacy and other human rights when promulgating internal rules. 215.", "The report also considered the position of journalists. It accepted that they were a group which required special protection, since searching their contacts could reveal their sources (and the risk of discovery could be a powerful disincentive to whistle-blowers). Nevertheless, it considered there to be no absolute prohibition on searching the contacts of journalists, provided that there were very strong reasons for doing so. It acknowledged, however, that the journalistic profession was not one which was easily identified, since NGOs were also engaged in building public opinion and even bloggers could claim to be entitled to equivalent protections. 216.", "Finally, the report briefly considered the issue of intelligence sharing, and in particular the risk that States could thereby circumvent stronger domestic surveillance procedures and/or any legal limits which their agencies might be subject to as regards domestic intelligence operations. It considered that a suitable safeguard would be to provide that the bulk material transferred could only be searched if all the material requirements of a national search were fulfilled and this was duly authorised in the same way as a search of bulk material obtained by the signals intelligence agency using its own techniques. I. European Union law 1. Charter of Fundamental Rights of the European Union 217. Articles 7, 8 and 11 of the Charter provide as follows: Article 7 – Respect for private and family life “Everyone has the right to respect for his or her private and family life, home and communications.” Article 8 – Protection of personal data “1.", "Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified. 3.", "Compliance with these rules shall be subject to control by an independent authority.” Article 11 – Freedom of expression and information “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.” 2.", "EU directives and regulations relating to protection and processing of personal data 218. The Data Protection Directive (Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data), adopted on 24 October 1995, regulated for many years the protection and processing of personal data within the European Union. As the activities of Member States regarding public safety, defence and State security fall outside the scope of Community law, the Directive did not apply to these activities (Article 3(2)). 219. The General Data Protection Regulation, adopted in April 2016, superseded the Data Protection Directive and became enforceable on 25 May 2018.", "The regulation, which is directly applicable in Member States[1], contains provisions and requirements pertaining to the processing of personally identifiable information of data subjects inside the European Union, and applies to all enterprises, regardless of location, that are doing business with the European Economic Area. Business processes that handle personal data must be built with data protection by design and by default, meaning that personal data must be stored using pseudonymisation or full anonymisation, and use the highest-possible privacy settings by default, so that the data is not available publicly without explicit consent, and cannot be used to identify a subject without additional information stored separately. No personal data may be processed unless it is done under a lawful basis specified by the regulation, or if the data controller or processor has received explicit, opt-in consent from the data’s owner. The data owner has the right to revoke this permission at any time. 220.", "A processor of personal data must clearly disclose any data collection, declare the lawful basis and purpose for data processing, how long data is being retained, and if it is being shared with any third-parties or outside of the EU. Users have the right to request a portable copy of the data collected by a processor in a common format, and the right to have their data erased under certain circumstances. Public authorities, and businesses whose core activities centre around regular or systematic processing of personal data, are required to employ a data protection officer (DPO), who is responsible for managing compliance with the GDPR. Businesses must report any data breaches within 72 hours if they have an adverse effect on user privacy. 221.", "The Privacy and Electronic Communications Directive (Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector), adopted on 12 July 2002, states, in recitals 2 and 11: “(2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter. (11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights.", "Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.” 222. The Directive further provides, insofar as relevant: Article 1 – Scope and aim “1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community. 2. The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1.", "Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons. 3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.” Article 15 – Application of certain provisions of Directive 95/46/EC “1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC.", "To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.” 223. On 15 March 2006 the Data Retention Directive (Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) was adopted. It provided, insofar as relevant: Article 1 - Subject matter and scope “1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.", "2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.” Article 3 – Obligation to retain data “1. By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC, Member States shall adopt measures to ensure that the data specified in Article 5 of this Directive are retained in accordance with the provisions thereof, to the extent that those data are generated or processed by providers of publicly available electronic communications services or of a public communications network within their jurisdiction in the process of supplying the communications services concerned.” 3. Relevant case-law of the Court of Justice of the European Union (“CJEU”) (a) Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Seitinger and Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238) 224.", "In a judgment of 8 April 2014 the Court of Justice of the European Union (“the CJEU”) declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data was available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The CJEU noted that, even though the directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain the data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the EU and the right to protection of personal data under Article 8 of the Charter. 225. The access of the competent national authorities to the data constituted a further interference with those fundamental rights, which the CJEU considered to be “particularly serious”.", "The fact that data was retained and subsequently used without the subscriber or registered user being informed was, according to the CJEU, likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality. 226. Firstly, the directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime.", "It therefore entailed an interference with the fundamental rights of practically the entire European population. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. 227. Secondly, the directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each Member State in its national law, the directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter.", "Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued. 228. Thirdly, the directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data.", "(b) Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (Cases C‑203/15 and C‑698/15; ECLI:EU:C:2016:970) 229. In Secretary of State for the Home Department v. Watson and Others, the applicants had sought judicial review of the legality of section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”), pursuant to which the Secretary of State could require a public telecommunications operator to retain relevant communications data if he considered it necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (h) of section 22(2) of RIPA. The applicants claimed, inter alia, that section 1 was incompatible with Articles 7 and 8 of the Charter and Article 8 of the Convention. 230. By judgment of 17 July 2015, the High Court held that the Digital Rights judgment laid down “mandatory requirements of EU law” applicable to the legislation of Member States on the retention of communications data and access to such data.", "Since the CJEU, in that judgment, held that Directive 2006/24 was incompatible with the principle of proportionality, national legislation containing the same provisions as that directive could, equally, not be compatible with that principle. In fact, it followed from the underlying logic of the Digital Rights judgment that legislation that established a general body of rules for the retention of communications data was in breach of the rights guaranteed in Articles 7 and 8 of the Charter, unless that legislation was complemented by a body of rules for access to the data, defined by national law, which provides sufficient safeguards to protect those rights. Accordingly, section 1 of DRIPA was not compatible with Articles 7 and 8 of the Charter as it did not lay down clear and precise rules providing for access to and use of retained data and access to that data was not made dependent on prior review by a court or an independent administrative body. 231. On appeal by the Secretary of State, the Court of Appeal sought a preliminary ruling from the CJEU.", "232. Before the CJEU this case was joined with the request for a preliminary ruling from the Kammarrätten i Stockholm in Case C‑203/15 Tele2 Sverige AB v Post- och telestyrelsen. Following an oral hearing in which some fifteen EU Member States intervened, the CJEU gave judgment on 21 December 2016. The CJEU held that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, had to be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, was not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union. 233.", "The CJEU declared the Court of Appeal’s question whether the protection afforded by Articles 7 and 8 of the Charter was wider than that guaranteed by Article 8 of the Convention inadmissible. 234. Following the handing down of the CJEU’s judgment, the case was relisted before the Court of Appeal. On 31 January 2018 it granted declaratory relief in the following terms: that section 1 of DRIPA was inconsistent with EU law to the extent that it permitted access to retained data where the object pursued by access was not restricted solely to fighting serious crime; or where access was not subject to prior review by a court or independent administrative authority. (c) Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service and Secret Intelligence Service (IPT/15/110/CH; EU OJ C 22, 22.1.2018, p. 29–30) 235.", "On 8 September 2017 the IPT gave judgment in the case of Privacy International, which concerned the acquisition by the agencies of Bulk Communications Data under section 94 of the Telecommunications Act 1984 (a different regime from those which form the subject of the present complaints) and Bulk Personal Data. The IPT found that, following their avowal, the regimes were compliant with Article 8 of the Convention. However, it identified the following four requirements which appeared to flow from the CJEU judgment in Watson and Others and which seemed to go beyond the requirements of Article 8 of the Convention: a restriction on non-targeted access to bulk data; a need for prior authorisation (save in cases of validly established emergency) before data could be accessed; provision for subsequent notification of those affected; and the retention of all data within the European Union. 236. On 30 October 2017 the IPT made a request to the CJEU for a preliminary ruling clarifying the extent to which the Watson requirements could apply where the bulk acquisition and automated processing techniques were necessary to protect national security.", "In doing so, it expressed serious concern that if the Watson requirements were to apply to measures taken to safeguard national security, they would frustrate them and put the national security of Member States at risk. In particular, it noted the benefits of bulk acquisition in the context of national security (referring to the Bulk Powers Review – see paragraphs 173-176 above); the risk that the need for prior authorisation could undermine the agencies’ ability to tackle the threat to national security; the danger and impracticality of implementing a requirement to give notice in respect of the acquisition or use of a bulk database, especially where national security was at stake; and the impact an absolute bar on the transfer of data outside the European Union could have on Member States’ treaty obligations. THE LAW I. EXHAUSTION OF DOMESTIC REMEDIES 237. The Government submitted that the applicants in the first and second of the joined cases had not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, which provides as follows: “1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” A.", "The parties’ submissions 1. The Government 238. The Government argued that the applicants in the first and second of the joined cases had not exhausted domestic remedies as they had failed to raise their complaints before the IPT. The IPT was a bespoke domestic tribunal set up for the very purpose of investigating, considering and ruling on the issues now raised before this Court. In Kennedy v. the United Kingdom, no.", "26839/05, 18 May 2010 the Court held that the IPT was Article 6 compliant and, as could be seen from the Liberty proceedings, it was capable of providing redress. Furthermore, it was advantageous for the Court to have the benefit of a detailed assessment of the operation of the relevant domestic legal regime by a bespoke domestic tribunal with an understanding of that system. That was especially so where, as in the case at hand, domestic law was not only complex, but also involved an assessment of issues of necessity and proportionality which would be particularly difficult to undertake without a proper determination at national level of facts material to the balance between the rights of the individual and the interests of the community as a whole. 239. As for the effectiveness of the IPT as a domestic remedy, the Government noted that it was “one of the most far-reaching systems of judicial oversight over intelligence matters in the world”, with broad jurisdiction and remedial powers.", "It produced open judgments to the extent that it could do so consistently with the public interest. It could investigate and consider in closed session any sensitive material that was relevant to the complaints and produce decisions having regard to that material. On account of its ability to assess and evaluate the adequacy of the internal safeguards, it was in a “special position” to make a proper assessment of proportionality. In the present case, the applicants’ complaints under Articles 8 and 10 of the Convention focussed on the alleged lack of publicly available safeguards and proportionality, and the IPT had the jurisdiction and requisite powers to deal with all of those complaints. It could make clear the extent to which the relevant domestic regime was compatible with the Convention and, if it was not compatible, it could identify the respects in which it was deficient.", "If there was a lack of foreseeability, it could identify with precision the respects in which the applicable safeguards were not – but should be – public, which, in turn, meant that those aspects of the regime could be remedied by the Government with further disclosure and/or amendments to the Code of Practice. Finally, where proportionality was in issue, it could, through its ability to consider relevant intelligence material in closed proceedings, provide an effective remedy by ordering the quashing of section 8(4) warrants and ordering the destruction of data. 240. Finally, in relation to the IPT’s more general declaratory jurisdiction, the Government argued that there was no deficit in Convention terms. On the contrary, it could and did rule on the general lawfulness of regimes about which complaints were made and if it concluded that a regime was contrary to the Convention, it would so state.", "Furthermore, the Government’s reaction to such findings had been consistent. As could be seen from the response to the Liberty and Belhadj determinations (see paragraphs 92-94 above), it had ensured that any defects were rectified and dealt with. Therefore, even though it has no jurisdiction to make a Declaration of Incompatibility under section 4 of the Human Rights Act 1998, on the facts a finding of incompatibility would be an effective trigger for the necessary changes to ensure Convention compatibility. In light of both this fact, and the Court’s increasing emphasis on subsidiarity, the Government contended that the position had moved on since Kennedy, in which the Court did not accept that the IPT had provided the applicant with an effective remedy for his general complaint about the Convention compliance of section 8(1) of RIPA. 2.", "The applicants 241. The applicants in the first and second of the joined cases submitted that they had done all that was required of them in terms of domestic remedies. While they accepted that they did not file complaints with the IPT before lodging their applications with this Court, they had not done so in reliance on the Court’s findings in Kennedy; namely, that a claim before the IPT was not necessary in order for a general challenge to be brought against the United Kingdom’s domestic framework. Although they accepted that it was always open to the Court to reconsider whether a domestic avenue of complaint provided an effective remedy, it had held that an applicant could only be required to make use of a remedy that had developed since the application was lodged if they could still make use of the remedy and it would not be unjust to declare the application admissible (Campbell and Fell v. the United Kingdom, 28 June 1984, §§ 62-63, Series A no. 80).", "242. In any event, the applicants argued that there had been no change of circumstances such as would make the IPT an effective remedy. In particular, they relied upon the arguments made by the applicants in the third of the joined cases in support of their Article 6 complaint, and further noted that the IPT could not make a Declaration of Incompatibility. The latter in any case did not constitute an effective remedy, since it did not result in the invalidation of the impugned legislation). B.", "The submissions of the third party 243. In its third party intervention, the European Network of National Human Rights Institutions (“ENNHRI”) submitted that the international legal framework, including the International Covenant on Civil and Political Rights (“ICCPR”) and the American Convention on Human Rights (“ACHR”), and case-law supported the contention that domestic remedies did not have to be followed if they were not capable of providing an effective remedy. C. The Court’s assessment 1. General principles 244. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights.", "This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level (Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014). However, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and it must therefore be applied with some degree of flexibility and without excessive formalism (see Vučković and Others, cited above, § 76; see also Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV and Gough v. the United Kingdom, no. 49327/11, § 140, 28 October 2014).", "245. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Vučković and Others, cited above, § 70 and Akdivar and Others, cited above, § 65). The Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on cases which require the finding of basic facts, which should, as a matter of principle and effective practice, be the domain of domestic jurisdiction (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010). Similarly, in cases requiring the balancing of conflicting interests under Articles 8 and 10 of the Convention it is particularly important that the domestic courts are first given the opportunity to strike the “complex and delicate” balance between the competing interests at stake.", "Those courts are in principle better placed than this Court to make such an assessment and, as a consequence, their conclusions will be central to its own consideration of the issue (MGN Limited v. the United Kingdom, no. 39401/04, §§ 140-155, 18 January 2011; Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 85-88, 7 February 2012; Courtney v. Ireland (dec), no. 69558/10, 18 December 2012; and Charron and Merle‑Montet v. France (dec), no.", "22612/15, § 30, 16 January 2018). 246. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others, cited above, § 71 and Akdivar and Others, cited above, § 66). 247.", "There is, however, no obligation to have recourse to remedies which are inadequate or ineffective. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Vučković and Others, cited above, §§ 73-74 and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others, cited above, § 74 and Scoppola v. Italy (no. 2) [GC], no.", "10249/03, § 70, 17 September 2009). 248. As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others, cited above, § 77; McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010; Demopoulos and Others, cited above, § 69; and Akdivar and Others, cited above, § 68).", "249. Where an applicant is challenging the general legal framework for secret surveillance measures, the Court has identified the availability of an effective domestic remedy as a relevant factor in determining whether that applicant was a “victim” of the alleged violation, since, in the absence of such a remedy, widespread suspicion and concern among the general public that secret surveillance powers were being abused might be justified (Roman Zakharov v. Russia [GC], no. 47143/06, § 171, ECHR 2015). 2. Application of those principles to the case at hand 250.", "The IPT is a specialist tribunal with sole jurisdiction to hear allegations of wrongful interference with communications as a result of conduct covered by RIPA (see paragraph 124 above). The Court of Appeal has recently observed that the IPT is “a judicial body of like standing and authority to the High Court” and that “[t]he quality of the membership of the IPT in terms of judicial expertise and independence is very high” (see paragraph 135 above). Its members must hold or have held high judicial office or be a qualified lawyer of at least ten years’ standing (see paragraph 123 above), and in the present case it was composed of two High Court Judges (including the President), a Circuit Judge and two senior barristers (see paragraph 24 above). It has jurisdiction to investigate any complaint that a person’s communications have been intercepted (see paragraph 124 above). In conducting such an investigation, the IPT will generally proceed on the assumption that the facts asserted by the applicant are true and then, acting upon that assumption, decide whether they would constitute lawful or unlawful conduct.", "In doing so, the IPT considers both the generic compliance of the relevant interception regime (on the basis of assuming there to have been an interception as alleged) as well as, at a subsequent stage, the specific question whether the individual applicant’s rights have, in fact, been breached. Those involved in the authorisation and execution of an intercept warrant are required to disclose to the IPT all the documents it may require, including “below the waterline” documents which could not be made public for reasons of national security (see paragraph 127 above), irrespective of whether those documents support or undermine their defence. The IPT has discretion to hold oral hearings, in public, where possible (see paragraphs 131, 138 and 139 above) and, in closed proceedings it may appoint Counsel to the Tribunal to make submissions on behalf of claimants who cannot be represented (see paragraph 142 above). When it determines a complaint the IPT has the power to award compensation and make any other order it sees fit, including quashing or cancelling any warrant and requiring the destruction of any records (see paragraph 128 above). In considering the complaint brought by the applicants in the third of the joined cases (“the Liberty proceedings”), the IPT used all of these powers for the benefit of the applicants.", "251. The Court considered the role of the IPT in secret surveillance cases in Kennedy (cited above), decided in 2010. In that case the applicant complained that his communications had been intercepted pursuant to a targeted warrant authorised under section 8(1) of RIPA (the specific complaint), and that the targeted interception regime under section 8(1) was not compliant with Article 8 of the Convention (the general compliance complaint). The Court held that the proceedings before the IPT had been Article 6 compliant, since any procedural restrictions were proportionate to the need to keep secret sensitive and confidential information and did not impair the very essence of the applicant’s right to a fair trial. With regard to the IPT’s effectiveness as a remedy, it acknowledged that Article 35 § 1 had “a special significance in the context of secret surveillance given the extensive powers of the IPT to investigate complaints before it and to access confidential information”.", "It considered these extensive powers to be relevant to the applicant’s specific complaint as it had required a factual investigation into whether his communications had been intercepted. However, it was not persuaded of their relevance to the general compliance complaint, since it was a legal challenge and, having already decided the specific complaint, it was unlikely that the IPT could further elucidate the general operation of the surveillance regime and applicable safeguards, such as would assist the Court in its consideration of the compliance of the regime with the Convention. While it accepted that the IPT could consider a complaint about the general compliance of a surveillance regime with the Convention and, if necessary, make a finding of incompatibility, the Government had not addressed in their submissions how such a finding would benefit the applicant, given that it did not appear to give rise to a binding obligation on the State to remedy the incompatibility. 252. Although in Kennedy the Court distinguished between a specific and general complaint, it is clear from its more recent case-law that while the two complaints are indeed distinct, they are nevertheless connected.", "In Roman Zakharov the Court identified the availability of an effective domestic remedy to a person who suspects that he or she was subjected to secret surveillance (in other words, an effective domestic remedy for a specific complaint) as a relevant factor in determining whether that person was a “victim” in respect of a complaint challenging the general legal framework for secret surveillance, since, in the absence of such a remedy, widespread suspicion and concern among the general public that secret surveillance powers were being abused might be justified (Roman Zakharov, cited above, § 171). In view of the significance the Court has attached to the existence of such a domestic remedy, it would be problematic if applicants were not required to use it before making either a specific or general complaint to this Court. The Court should not have to consider a challenge to a legislative regime in abstracto when the applicants had a domestic forum in which they could have challenged at the very least the possible application of those measures to them. 253. In any event, the IPT’s ruling in Mr Kennedy’s case came very early in the Tribunal’s history.", "In fact, Mr Kennedy’s application, together with an application lodged by British and Irish Rights Watch, was the first time that the IPT sat in public. It was in the context of those applications that it gave its defining ruling on preliminary issues of law and established its current practice (see paragraphs 136-141 above). For the reasons set out below, the Court considers that in view both of the manner in which the IPT has exercised its powers in the fifteen years that have elapsed since that ruling, and the very real impact its judgments have had on domestic law and practice, the concerns expressed by the Court in Kennedy about its effectiveness as a remedy for complaints about the general compliance of a secret surveillance regime are no longer valid. 254. First, in Kennedy the IPT had fully examined Mr Kennedy’s specific complaint about the interception of his communications.", "The Court was solely concerned with whether an examination of the general complaint could have provided additional clarification. Unlike the present case, therefore, the Court was not being called upon to consider the general complaint entirely in abstracto. 255. Secondly, an examination of the IPT’s extensive post-Kennedy case-law demonstrates the important role that it can and does play in analysing and elucidating the general operation of secret surveillance regimes. For example, in B v. the Security Services, Case No IPT/03/01/CH, 21 March 2004 the IPT considered, as a preliminary issue of law, whether the Secretary of State’s “neither confirm nor deny” policy was compatible with Article 8 of the Convention.", "Similarly, in A Complaint of Surveillance, Case No IPT/A1/2013, 24 July 2013 the IPT provided elucidation on the meaning of the term “surveillance” in Part II of RIPA. Moreover, given the “secret” nature of most surveillance regimes, the scope of their operation will not always be evident from the “above the waterline” material. For example, in the Liberty proceedings the IPT played a crucial role first in identifying those aspects of the surveillance regimes which could and should be further elucidated, and then recommending the disclosure of certain “below the waterline” arrangements in order to achieve this goal. It could therefore be said that the IPT, as the only tribunal with jurisdiction to obtain and review “below the waterline” material, is not only the sole body capable of elucidating the general operation of a surveillance regime; it is also the sole body capable of determining whether that regime requires further elucidation. 256.", "This “elucidatory” role is of invaluable assistance to the Court when it is considering the compliance of a secret surveillance regime with the Convention. The Court has repeatedly stated that it is not its role to determine questions of fact or to interpret domestic law. That is especially so where domestic law is complex and, for reasons of national security, the State is not at liberty to disclose relevant information to it. Given the confidential nature of the relevant documentation, were applicants to lodge complaints about secret surveillance with this Court without first raising them before the IPT, this Court would either have to become the primary fact-finder in such cases, or it would have to assess necessity and proportionality in a factual vacuum. This difficulty is particularly apparent in respect of those complaints not considered by the IPT in the Liberty proceedings; in particular, the Chapter II complaint and the complaint about the receipt of non-intercept material from foreign intelligence services.", "The Court has before it very limited information about the scope and operation of these regimes and it could therefore only consider these complaints if it were either to accept the applicants’ allegations as fact, or to attempt to conduct its own fact-finding exercise. In such cases, therefore, it is particularly important that the domestic courts, which have access to the confidential documentation, first strike the “complex and delicate balance” between the competing interests at stake (see paragraph 245 above). 257. Consequently, on the basis of the information submitted to it, the Court considers that the IPT can – and regularly does – elucidate the general operation of surveillance regimes, including in cases where such elucidation is considered necessary to ensure the regime’s Convention compliance. 258.", "Furthermore, from the information submitted in the present case it would appear that where the IPT has found a surveillance regime to be incompatible with the Convention, the Government have ensured that any defects are rectified and dealt with. In the Liberty proceedings, once the IPT had identified which of the “below the waterline” arrangements could and should be made public in order for the intelligence sharing regime to be Convention compliant, the Government agreed to the proposed disclosure (“the 9 October disclosure”) and the disclosed material was subsequently added to the amended Code of Practice (see paragraphs 26-30 above). In addition, having found that there had been a breach of Article 8 of the Convention by virtue of the fact that email communications of Amnesty International, which had been intercepted and accessed “lawfully and proportionately”, had nevertheless been retained for longer than was permitted under GCHQ’s internal policies, the IPT ordered GCHQ to destroy the communications within seven days, and to provide a closed report within fourteen days confirming their destruction (see paragraph 54 above). 259. Similarly, in the Belhadj case the Government conceded that from January 2010 the regime for the interception, obtaining, analysis, use, disclosure and destruction of legally privileged material had not been in accordance with the law for the purposes of Article 8 § 2 of the Convention and was accordingly unlawful.", "As a consequence, the Security Service and GCHQ confirmed that they would work in the forthcoming weeks to review their policies and procedures (see paragraph 93 above). 260. In addition, in News Group and Others v. The Commissioner of Police of the Metropolis the IPT found that the regime under Chapter II of RIPA (for the acquisition of communications data) did not contain effective safeguards to protect Article 10 rights. Although the IPT could not award any remedy in respect of the failure to provide adequate safeguards, as this did not in itself render the authorisations for the acquisition of communications data unlawful, in March 2015 the 2007 ACD Code of Practice was replaced by a new code with enhanced safeguards in respect of applications for communications data designed to identify a journalist’s source (see paragraphs 118-120 above). The applicants in that case subsequently lodged a complaint under Article 10 of the Convention with this Court; however, in a recent decision the Court declared the complaint inadmissible as it found that the applicants had not suffered a “significant disadvantage” within the meaning of Article 35 § 3 (b) of the Convention (see Anthony France and Others v. the United Kingdom (dec.), nos.", "25357/16, 25514/16, 25552/16 and 25597/16, 26 September 2016). In particular, the Court observed that “the applicants have benefitted from a thorough and comprehensive judgment from the IPT, which clearly sets out all the aspects of the interference with their rights”. Furthermore, although “the IPT could not find that there had been a violation of their rights, it nonetheless made a clear statement that their rights had been infringed” and a change in the law subsequently occurred (see Anthony France and Others, cited above, §§ 43-46). 261. Finally, to cite an earlier example, in Paton and Others v. Poole Borough Council, Case Nos IPT/09/01/C, IPT/09/02/C, IPT/09/03/C, IPT/09/04/C and IPT/09/05/C, 29 July 2010, the IPT found that surveillance carried out by a local authority was both unlawful and in breach of Article 8 of the Convention as it was not for the permitted purpose and was neither necessary nor proportionate.", "While the IPT made no findings regarding the Convention compliance of the regime as a whole, the case was highly publicised and fed into a general public debate about the surveillance powers of local councils. Very shortly after the judgment was handed down, the Government announced that there was to be a review of RIPA which would cover its use by local authorities. Two years later RIPA was amended to restrict the power of local authorities to conduct surveillance. 262. Therefore, while the evidence submitted by the Government may not yet demonstrate the existence of a “binding obligation” requiring it to remedy any incompatibility identified by the IPT, in light of the IPT’s “special significance” in secret surveillance cases which arises from its “extensive powers ... to investigate complaints before it and to access confidential information” (see Kennedy, cited above, § 110) the Court would nevertheless accept that the practice of giving effect to its findings on the incompatibility of domestic law with the Convention is sufficiently certain for it to be satisfied as to the effectiveness of the remedy.", "263. The effectiveness of the IPT is further underlined by the fact that it can, as a matter of EU law, make an order for reference to the CJEU where an issue arises that is relevant to the dispute before it (see Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State for the Home Department, Government Communications Headquarters, Security Service and Secret Intelligence Service, at paragraph 236 above). The Court has held that the protection of fundamental rights by Community law can be considered to be “equivalent” to that of the Convention system (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 165 ECHR 2005‑VI) and it would therefore be surprising if applicants were permitted to bypass a court or tribunal which could have such a significant role in the enforcement of Community law and its fundamental rights guarantees. 264.", "Insofar as the applicants rely on the fact that the IPT cannot issue a Declaration of Incompatibility (see paragraph 242 above), it is sufficient to note that the Court has not yet accepted that the practice of giving effect to the national courts’ Declarations of Incompatibility by amendment of legislation is “so certain as to indicate that section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation” (see Burden v. the United Kingdom [GC], no. 13378/05, § 43, ECHR 2008). Consequently, the relevant question is not whether the IPT can issue a Declaration of Incompatibility, but whether the practice of giving effect to its findings is sufficiently certain. 265. In light of the foregoing considerations, the Court finds that as a general rule the IPT has shown itself to be a remedy, available in theory and practice, which is capable of offering redress to applicants complaining of both specific incidences of surveillance and the general Convention compliance of surveillance regimes.", "As a result, the complaints made by the applicants in the first and second of the joined cases must be declared inadmissible for non-exhaustion unless they can show that there existed special circumstances absolving them from the requirement to exhaust this remedy. 266. In this regard, they contend that precisely such circumstances existed; namely, that at the time they lodged their applications with this Court they were entitled to rely on Kennedy as authority for the proposition that the IPT was not an effective remedy for a complaint about the general Convention compliance of a surveillance regime. 267. Although, at first glance, there would appear to be significant differences between the present case and that of Kennedy (for example, as the applicant in Kennedy had brought a specific complaint to the IPT the Court was not required to consider the more general complaint entirely in the abstract, and in Kennedy the applicant’s challenge to the RIPA provisions was a challenge to primary legislation as opposed to the whole legal framework governing the relevant surveillance regime), the Government, for their part, have not sought to distinguish Kennedy from the case at hand.", "Moreover, the case-law of the IPT which the Government have relied on as evidence of its effectiveness as a remedy post-dates the introduction before this Court – on 4 September 2013 and 11 September 2014 – of the complaints made by the applicants in the first and second of the joined cases. For example, the main judgment in the Liberty proceedings was delivered on 5 December 2014, the Belhadj proceedings concluded on 26 February 2015 and News Group and Others was decided on 17 December 2015). While the Court has identified some earlier cases which illustrate the effectiveness of the IPT (for example, B, A Complaint of Surveillance and Paton and Others), none of these cases concerned a general complaint about the Convention compliance of a surveillance regime. In comparison, the Liberty proceedings, Belhadj and News Group and Others all demonstrate the important and unique role of the IPT in both elucidating the operation of such regimes, and remedying any breaches of the Convention. 268.", "Consequently, while the Court acknowledges that since Kennedy was decided in 2010 the IPT has shown itself to be an effective remedy which applicants complaining about the actions of the intelligence services and/or the general operation of surveillance regimes should first exhaust in order to satisfy the requirements of Article 35 § 1 of the Convention, it would nevertheless accept that at the time the applicants in the first and second of the joined cases introduced their applications, they could not be faulted for relying on Kennedy as authority for the proposition that the IPT was not an effective remedy for a complaint about the general Convention compliance of a surveillance regime. It therefore finds that there existed special circumstances absolving these applicants from the requirement that they first bring their complaints to the IPT and, as a consequence, it considers that their complaints cannot be declared inadmissible pursuant to Article 35 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 269. Cumulatively, the applicants in the three joined cases complain about the Article 8 compatibility of three discrete regimes: the regime for the bulk interception of communications under section 8(4) of RIPA; the intelligence sharing regime; and the regime for the acquisition of communications data under Chapter II of RIPA.", "The Court will consider each of these regimes separately. A. The section 8(4) regime 270. The applicants in all of the joined cases complain that the regime under section 8(4) of RIPA for the bulk interception of communications is incompatible with their right to respect for their rights under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 271. The Government contested that argument. They did not, however, raise any objection under Article 1 of the Convention; nor did they suggest that the interception of communications under the section 8(4) regime was taking place outside the United Kingdom’s territorial jurisdiction. The Court will therefore proceed on the assumption that the matters complained of fall within the jurisdictional competence of the United Kingdom.", "1. Admissibility 272. 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.", "2. Merits (a) The parties’ submissions (i) The applicants 273. The applicants accepted that the bulk interception regime had a basis in domestic law. However, they argued that it lacked the quality of law because it was so complex as to be inaccessible to the public and to the Government, reliance was placed on arrangements which were substantially “below the waterline” rather than on clear and binding legal guidelines, and it lacked sufficient guarantees against abuse. 274.", "In particular, the applicants submitted that the section 8(4) regime did not comply with the six requirements identified by this Court in Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI. Firstly, they contended that the purposes for which interception could be permitted (such as “the interests of national security” and “the economic well-being of the United Kingdom) were too vague to provide a clear limit on the intelligence services’ activities. 275. Secondly, they argued that in practice any person was liable to have his or her communications intercepted under section 8(4).", "Although the regime was targeted at “external” communications, there was no clear definition of “internal” and “external” communications, and in any event modern technological developments had rendered the distinction between the two meaningless. While the Secretary of State was required to provide descriptions of the material he considered it necessary to examine, the ISC had reported that section 8(4) warrants were framed in generic terms. 276. Thirdly, with regard to the limits on the duration of surveillance, the applicants submitted that, in practice, a section 8(4) warrant could continue indefinitely, being renewed every six months by the Secretary of State pursuant to section 9(1)(b) of RIPA. 277.", "Fourthly, according to the applicants the procedure for filtering, storing and analysing intercepted material lacked adequate safeguards and gave rise to an unacceptable risk of an arbitrary and disproportionate interference with Article 8 of the Convention. First of all, there was no requirement that the selectors used to filter intercepted communications be identified in the Secretary of State’s certificate accompanying the section 8(4) warrant, and these selectors were not otherwise subject to oversight. Secondly, the section 16 safeguards only applied where a person was “known to be for the time being in the British Islands”. Thirdly, the protections in section 16 of RIPA only applied to the “content” of intercepted communications, and not the filtering, storage and analysis of “related communications data”, despite the fact that communications data was capable of providing the Government with a detailed profile of the most intimate aspects of a person’s private life. 278.", "Fifthly, in relation to the communication of intercepted material, the applicants contended that the requirement that the Secretary of State ensure that its disclosure was limited to “the minimum that is necessary for the authorised purposes” was an ineffective safeguard. The authorised purposes enumerated in section 15(4) of RIPA were extremely wide, and included situations where the information was or was “likely to become” necessary for any of the purposes specified in section 5(3) of RIPA. 279. Sixth and finally, the applicants submitted that there were no effective or binding safeguards against the disproportionate retention of intercepted data. Indeed, according to the applicants it was clear from the third IPT judgment in the Liberty proceedings that Amnesty International’s communications had been stored without the appropriate (automated) deletion procedures being followed, and neither the intelligence services nor the oversight and audit mechanisms had detected this.", "280. In addition to arguing that the Weber requirements were not satisfied, the applicants in any event contended that they were no longer sufficient to ensure that a communications surveillance regime was compatible with Article 8 of the Convention. Weber had been decided in 2006, and subsequent technological developments meant that Governments could now create detailed and intrusive profiles of intimate aspects of private lives by analysing patterns of communications on a bulk basis. The applicants therefore identified a number of additional requirements which they believed were now necessary to ensure the Convention compliance of a legal framework for surveillance: the requirement for objective evidence of reasonable suspicion in relation to the persons for whom data was being sought; prior independent judicial authorisation of interception warrants; and the subsequent notification of the surveillance subject. 281.", "Finally, the applicants submitted that the section 8(4) regime was disproportionate. In their view the intelligence services were systematically collecting both content and communications data on a massive scale and retaining it for future searching and use. Such a blanket approach fell foul of the principles established in S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008 and M.K. v. France, no.", "19522/09, 18 April 2013. (ii) The Government 282. At the outset, the Government submitted that the information and intelligence obtained under the section 8(4) regime was critical to the protection of the United Kingdom from national security threats; in particular, but not exclusively, from the threat of terrorism. This was especially so given the current level of sophistication of terrorists and criminals in communicating over the Internet in ways that avoided detection, whether through the use of encryption, the adoption of bespoke communications systems, or simply because of the volume of Internet traffic in which they could now hide their communications. Imposing additional fetters on the interception of communications would damage the State’s ability to safeguard national security and combat serious crime at exactly the point when advances in communication technology had increased the threat from terrorists and criminals using the Internet.", "283. The seriousness of the terrorist threat was underscored by a number of recent attacks across the United Kingdom and Europe, including the attack on Westminster Bridge on 22 March 2017, the Manchester Arena bombing of 22 May 2017, the attack on London Bridge on 3 June 2017, the attacks in Barcelona and Cambrils on 17 August 2017, and the attack on the London Underground on 15 September 2017. The Government therefore submitted that under the Convention scheme, it was properly for States to judge what was necessary to protect the general community from such threats. While those systems were subject to the Court’s scrutiny, it had consistently – and rightly – afforded States a broad margin of appreciation in this field so as not to undermine the effectiveness of systems for obtaining life-saving intelligence that could not be gathered any other way. 284.", "Although the Government denied that the section 8(4) regime permitted mass surveillance or generalised access to communications, it accepted that it permitted, pursuant to the lawful authority of warrants, the bulk interception of bearers for wanted external communications. In the Government’s opinion, the distinction between “internal” and “external” communications was sufficiently clear, and in any event it operated primarily as a safeguard at the macro level; that is, in determining which bearers should be targeted for interception. The Government further contended that bulk interception was critical for the discovery of threats and hitherto unknown targets which might be responsible for threats. Even when the identity of targets was known, they were likely to use a variety of different means of communication, and change those means frequently. Electronic communications did not traverse the Internet by routes that could necessarily be predicted; rather, they took the most efficient route, determined by factors such as cost and the volume of traffic passing over particular parts of the Internet at different times of the day.", "In addition, communications sent over the Internet were broken down into small pieces (or “packets”), which were transmitted separately, often through different routes. In the opinion of the Government, it was therefore necessary to intercept all communications travelling over more than one bearer to maximise the chance of identifying and obtaining the communications being sent to known targets. 285. With regard to whether the interference complained of was “in accordance with the law”, the Government relied on the fact that it had its basis in primary legislation, namely section 8(4) of RIPA, supplemented by the Interception of Communications Code of Practice (“the IC Code”). It had been further clarified by the reports of the Interception of Communications Commissioner, which were also public documents.", "286. In relation to the Weber requirements the Government argued that the first foreseeability requirement, being the “offences” which might give rise to an interception order, was satisfied by section 5 of RIPA, which defined the purposes for which the Secretary of State could issue an interception warrant. In Kennedy, despite the applicant’s criticism of the terms “national security” and “serious crime”, the Court had found the description of the offences which might give rise to an interception order to be sufficiently clear (Kennedy, cited above, § 159). 287. Relying on Weber, the Government submitted that the second foreseeability requirement (the categories of people liable to have their communications intercepted) applied at both the interception stage and the selection stage.", "As regards the interception stage, a section 8(4) warrant was targeted at “external” communications, although in principle it might authorise the interception of “internal” communications insofar as that was necessary in order to intercept the external communications to which the warrant related. With regard to the selection stage, section 16(1) of RIPA provided that no intercepted material could be read, looked at or listened to by any person unless it fell within the Secretary of State’s certificate, and it was proportionate in the circumstances to do so. Furthermore, section 16(2) placed sufficiently precise limits on the extent to which intercepted material could be selected to be read, looked at or listened to according to a factor which was referable to an individual known to be for the time being in the British Islands and which had as (one of) its purpose(s) the identification of material contained in communications sent by or intended for him. 288. The Government further argued that paragraphs 6.22-6.24 of the IC Code made sufficient provision for the duration and renewal of a section 8(4) warrant, thereby complying with the third requirement identified in Weber.", "Pursuant to section 9(2) of RIPA, a section 8(4) warrant could only be renewed if the Secretary of State believed that it continued to be necessary, and if the Secretary of State believed that the warrant was no longer necessary, section 9(3) of RIPA required that it be cancelled. 289. According to the Government, insofar as intercepted material could not be read, looked at or listened to by a person pursuant to section 16 of RIPA, it could not be used at all. Prior to its destruction, paragraph 7.7 of the IC Code required that it be stored securely. For material that could be read, looked at and listened to pursuant to section 16, the Government submitted that the regime satisfied the fourth of the Weber requirements.", "In particular, material had to be selected for examination through the application of search terms by equipment operating automatically for that purpose. If an analyst then wished to select material for examination, paragraphs 7.14-7.16 of the IC Code required that he or she create a record setting out why access was required and proportionate, consistent with the applicable certificate, and stating any circumstances likely to give rise to a degree of collateral infringement of privacy, and any measures taken to reduce the extent of that infringement. That record had to be retained for the purpose of subsequent audit. Paragraphs 7.11-7.20 further required that material should only be read, looked at or listened to by authorised persons receiving regular training in the operation of section 16 of RIPA and the requirements of necessity and proportionality. Finally, material could only be used by the intelligence services in accordance with their statutory functions, and only insofar as was proportionate under section 6(1) of the Human Rights Act 1998.", "290. The Government further submitted that the section 8(4) regime satisfied the fifth Weber requirement. Section 15(2) set out the precautions to be taken when communicating intercepted material to other people. These precautions served to ensure that only so much intercepted material as was “necessary” for the authorised purpose could be disclosed. Paragraphs 7.4 and 7.5 of the IC Code further provided that where intercepted material was to be disclosed to a foreign State, the intelligence services had to take reasonable steps to ensure that the authorities of that State had and would maintain the necessary procedures to safeguard the intercepted material, and to ensure that it was disclosed, copied, distributed and retained only to the minimum extent necessary.", "It could only be further disclosed to the authorities of a third country if explicitly agreed. Finally, any disclosure would have to satisfy the constraints imposed by sections 1-2 of the Security Services Act 1989, sections 1-4 of the Intelligence Services Act 1994 as read with section 19(3)-(5) of the Counter Terrorism Act 2008 and section 6(1) of the Human Rights Act 1998. 291. With regard to the final Weber requirement, the Government contended that section 15(3) of RIPA and paragraphs 7.8-7.9 of the IC Code made sufficient provision for the circumstances in which intercepted material had to be erased or destroyed (including the obligation to review retention at appropriate intervals, and the specification of maximum retention periods which should normally be no longer than two years). 292.", "Although the Government acknowledged that the safeguards in section 16 of RIPA did not apply to “related communications data”, they argued that the covert acquisition of related communications data was less intrusive than the covert acquisition of content and, as such, the Court had never applied the Weber requirements to powers to acquire communications data. It was therefore their contention that instead of the list of six specific foreseeability requirements, the test in respect of communications data should be the more general one of whether the law indicated the scope of any discretion and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference. 293. According to the Government, the section 8(4) regime satisfied this test as regards the obtaining and use of related communications data. First of all, “related communications data” as defined in sections 20 and 21 of RIPA was not synonymous with “metadata” but was instead a limited subset of metadata.", "Secondly, the section 8(4) regime was sufficiently clear as to the circumstances in which the intelligence services could obtain related communications data (namely, by the interception of bearers pursuant to a section 8(4) warrant). Once obtained, access to related communications data had to be necessary and proportionate under section 6(1) of the Human Rights Act 1998 and subject to the constraints in sections 1-2 of the Security Services Act and sections 1-4 of the Intelligence Services Act. Storage, handling, use and disclosure of related communications data, including access by a foreign intelligence partner, would be constrained by section 15 of RIPA and paragraphs 7.1-7.10 of the IC Code. Finally, the Government argued that there was good reason for exempting related communications data from the safeguards in section 16; in order for section 16 to work, the intelligence services needed to be able to assess whether a potential target was “for the time being in the British Islands”. 294.", "Finally, the Government addressed the applicants’ proposals for “updating” the Weber requirements. They submitted that any requirement of “reasonable suspicion” would largely preclude the operation of bulk interception regimes, despite the fact that the Court had permitted such monitoring in Weber. Furthermore, in Kennedy (cited above, § 167) the Court clearly held that judicial authorisation could be either ex ante or post facto. In that case the Court had found that the oversight provided by the Commissioner, the ISC and the IPT had compensated for any lack of prior judicial authorisation. Finally, any requirement to notify a suspect of the use of bulk data tools against him could fundamentally undermine the work of the intelligence services and potentially threaten the lives of covert human intelligence sources close to the suspect.", "It would also be wholly impractical in the section 8(4) context, since many of the targets would be overseas and their personal details might be unknown or imperfectly known. (b) The submissions of the third parties (i) Article 19 295. Article 19 submitted that mass interception powers were by their very nature inherently incapable of being exercised in a proportionate manner and, as such, were inherently incompatible with the requirements of the Convention. Article 19 therefore urged the Court to conclude that only targeted surveillance based on reasonable suspicion and authorised by a judge constituted a legitimate restriction on the right to privacy. (ii) Access Now 296.", "Access Now submitted that the mass surveillance at issue in the present case failed to comply with the International Covenant on Civil and Political Rights (“ICCPR”) and the International Principles on the Application of Human Rights to Communications Surveillance since the United Kingdom had not demonstrated that such surveillance was strictly necessary or proportionate. They further contended that surveillance programmes should not be considered independently but should instead be viewed in relation to the entirety of a nation’s surveillance activities as machine learning, through which mathematical algorithms could draw inferences from collections of data, had increased the invasiveness of big data sets and data mining. (iii) ENNHRI 297. The ENNHRI also drew the Court’s attention to international instruments such as the ICCPR, the American Convention on Human Rights, and the EU Charter of Fundamental Rights. It observed that in 2015 the Human Rights Committee reviewed the State Party report of the United Kingdom of Great Britain and Northern Ireland.", "It expressed concern that RIPA provided for untargeted warrants for the interception of external communications without affording the same safeguards as applied to internal communications, and it made a number of detailed recommendations, including the creation of sufficiently precise and foreseeable legal provisions, and judicial involvement in the authorisation of such measures. (iv) The Helsinki Foundation for Human Rights (“HFHR”) 298. The HFHR described their experience challenging the surveillance of communications by public authorities in Poland, which culminated in the Constitutional Tribunal finding certain aspects of the relevant legislation to be unconstitutional. The legislation was subsequently amended. (v) The International Commission of Jurists (“ICJ”) 299.", "The ICJ submitted that in light of the scale and scope of the interference with privacy entailed in mass surveillance, the distinction between the acquisition of metadata and content had become out-dated. Furthermore, the fact that, in a mass surveillance operation, elements of the interference with rights might take place outside a State’s territorial jurisdiction didn’t preclude that State’s responsibility, since its control over the information was sufficient to establish jurisdiction. (vi) Open Society Justice Initiative (“OSJI”) 300. OSJI submitted that both the amount of data available for interception today and governments’ appetite for data far exceeded what was possible in the past. Consequently, bulk interception was a particularly serious interference with privacy which could, through its “chilling effect”, potentially interfere with other rights such as freedom of expression and freedom of association.", "To be lawful, bulk interception should therefore satisfy several preconditions: the governing law had to be sufficiently precise; the scope of the information gathered had to be limited by time and geography; and information should only be gathered based on “reasonable suspicion”. (vii) European Digital Rights (“EDRi”) and other organisations active in the field of human rights in the information society 301. EDRi and others argued that the present case offered the Court a crucial opportunity to revise its framework for the protection of metadata. Governments had built their surveillance programmes based on the distinction drawn between content and metadata in Malone v. the United Kingdom, 2 August 1984, Series A no. 82, but at the time that case was decided neither the Internet nor mobile phones existed.", "Today, metadata could paint a detailed and intimate picture of a person: it allowed for mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with. Moreover, the level of detail that could be gleaned was magnified when analysed on a large scale. Indeed, Stewart Baker, general counsel of the NSA, had indicated that metadata could disclose everything about someone’s life, and that if you had enough metadata, you wouldn’t need content. As a result, different degrees of protection should not be afforded to personal data based on the arbitrary and irrelevant distinction between content and metadata, but rather on the inferences that could be drawn from the data. (viii) The Law Society of England and Wales 302.", "The Law Society expressed deep concern about the implications of the section 8(4) regime for the principle of legal professional privilege. In particular, the regime permitted the interception of legally privileged and confidential communications between lawyers and clients, even when both were in the United Kingdom. It also permitted the routine collection of metadata attaching to such communications. Furthermore, once intercepted these legally privileged communications could be used, provided that the primary purpose and object of the warrant was the collection of external communications. This arrangement – and the absence of adequate constraints on the use of such material – was apt to have a potentially severe chilling effect on the frankness and openness of lawyer-client communications.", "(c) The Court’s assessment (i) General principles relating to secret measures of surveillance, including the interception of communications 303. Although the Court has developed extensive jurisprudence on secret measures of surveillance, its case-law concerns many different forms of surveillance, including, but not limited to, the interception of communications. It also concerns many different forms of “interference” with applicants’ right to respect for their private lives; for example, while some cases concern the interception of the content of communications, others concern the interception or obtaining of communications data, or the tracking of individuals via GPS. As the Court has at times differentiated between the different types of surveillance and the different forms of interference, there is no one set of general principles which apply in all cases concerning secret measures of surveillance. The following principles can, however, be extrapolated from the Court’s case-law.", "304. Any interference with an individual’s Article 8 rights can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that paragraph refers and is necessary in a democratic society in order to achieve any such aim (see Roman Zakharov, cited above, § 227, and Kennedy, cited above, § 130). 305. According to the Court’s well established case-law, the wording “in accordance with the law” requires the impugned measure to have some basis in domestic law (as opposed to a practice which does not have a specific legal basis – see Heglas v. the Czech Republic, no. 5935/02, § 74, 1 March 2007).", "It must also be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov, cited above, § 228; see also, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V; S. and Marper, cited above, § 95, and Kennedy, cited above, § 151). 306. The Court has held on several occasions that the reference to “foreseeability” in the context of secret surveillance cannot be the same as in many other fields.", "Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to resort to such measures so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on secret surveillance measures, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Roman Zakharov, cited above, § 229; see also Malone, cited above, § 67, Leander, cited above, § 51; Huvig v. France, 24 April 1990, § 29, Series A no. 176‑B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998‑V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no.", "62540/00, § 75, 28 June 2007). Moreover, the law must indicate the scope of any discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 230; see also, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94). 307. In its case-law on the interception of communications in criminal investigations, the Court has developed the following minimum requirements that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their communications intercepted; a limit on the duration of interception; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which intercepted data may or must be erased or destroyed (see Huvig, cited above, § 34; Valenzuela Contreras, cited above, § 46; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76). In Roman Zakharov (cited above, § 231) the Court confirmed that the same six minimum requirements also applied in cases where the interception was for reasons of national security; however, in determining whether the impugned legislation was in breach of Article 8, it also had regard to the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law (Roman Zakharov, cited above, § 238).", "308. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law.", "The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Others v. Germany, 6 September 1978, §§ 49, 50 and 59, Series A no. 28, Weber and Saravia, cited above, § 106 and Kennedy, cited above, §§ 153 and 154). 309. Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights.", "In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Roman Zakharov, cited above, § 233; see also Klass and Others, cited above, §§ 55 and 56). 310. As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively (see Roman Zakharov, cited above, § 234; see also Klass and Others, cited above, § 57, and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that he or she has been subject to surveillance can apply to courts, whose jurisdiction does not depend on notification to the surveillance subject of the measures taken (see Roman Zakharov, cited above, § 234; see also Kennedy, cited above, § 167). (ii) Existing case-law on the bulk interception of communications 311.", "The Court has considered the Convention compatibility of regimes which expressly permit the bulk interception of communications on two occasions: first in Weber and Saravia (cited above), and then in Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008. 312. In Weber and Saravia the applicants complained about the process of strategic monitoring under the amended G10 Act, which authorised the monitoring of international wireless telecommunications. Signals emitted from foreign countries were monitored by interception sites situated on German soil with the aid of certain catchwords which were listed in the monitoring order.", "Only communications containing these catchwords were recorded and used. Having particular regard to the six “minimum requirements” set out in paragraph 307 above, the Court considered that there existed adequate and effective guarantees against abuses of the State’s strategic monitoring powers. It therefore declared the applicants’ Article 8 complaints to be manifestly ill-founded. 313. In Liberty and Others the Court was considering the regime under section 3(2) of the Interception of Communications Act 1985, which was in effect the predecessor of the regime under section 8(4) of RIPA.", "Section 3(2) allowed the executive to intercept communications passing between the United Kingdom and an external receiver. At the time of issuing a section 3(2) warrant, the Secretary of State was required to issue a certificate containing a description of the intercepted material which he considered should be examined. The 1985 Act provided that material could be contained in a certificate, and thus listened to or read, if the Secretary of State considered that this was required in the interests of national security, the prevention of serious crime or the protection of the United Kingdom’s economy. However, external communications emanating from a particular address in the United Kingdom could only be included in a certificate for examination if the Secretary of State considered it necessary for the prevention or detection of acts of terrorism. The Court held that the domestic law at the relevant time (which predated the adoption of the Interception of Communications Code of Practice – see, in particular, paragraph 109 above) did not indicate with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications.", "In particular, it did not set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. (iii) The test to be applied in the present case 314. The Court has expressly recognised that the national authorities enjoy a wide margin of appreciation in choosing how best to achieve the legitimate aim of protecting national security (see Weber and Saravia, cited above, § 106). Furthermore, in Weber and Saravia and Liberty and Others the Court accepted that bulk interception regimes did not per se fall outside this margin. Although both of these cases are now more than ten years old, given the reasoning of the Court in those judgments and in view of the current threats facing many Contracting States (including the scourge of global terrorism and other serious crime, such as drug trafficking, human trafficking, the sexual exploitation of children and cybercrime), advancements in technology which have made it easier for terrorists and criminals to evade detection on the Internet, and the unpredictability of the routes via which electronic communications are transmitted, the Court considers that the decision to operate a bulk interception regime in order to identify hitherto unknown threats to national security is one which continues to fall within States’ margin of appreciation.", "315. Nevertheless, as indicated previously, it is evident from the Court’s case-law over several decades that all interception regimes (both bulk and targeted) have the potential to be abused, especially where the true breadth of the authorities’ discretion to intercept cannot be discerned from the relevant legislation (see, for example, Roman Zakharov, cited above, and Szabó and Vissy v. Hungary, no. 37138/14, 12 January 2016). Therefore, while States enjoy a wide margin of appreciation in deciding what type of interception regime is necessary to protect national security, the discretion afforded to them in operating an interception regime must necessarily be narrower. In this regard, the Court has identified six minimum requirements that both bulk interception and other interception regimes must satisfy in order to be sufficiently foreseeable to minimise the risk of abuses of power (see paragraph 307 above).", "316. The applicants argue that in the present case the Court should “update” those requirements by including requirements for objective evidence of reasonable suspicion in relation to the persons for whom data is being sought, prior independent judicial authorisation of interception warrants, and the subsequent notification of the surveillance subject (see paragraph 280 above). In their view, such changes would reflect the fact that due to recent technological developments the interception of communications now has greater potential than ever before to paint an intimate and detailed portrait of a person’s private life and behaviour. However, while the Court does not doubt the impact of modern technology on the intrusiveness of interception, and has indeed emphasised this point in its case-law, it would be wrong automatically to assume that bulk interception constitutes a greater intrusion into the private life of an individual than targeted interception, which by its very nature is more likely to result in the acquisition and examination of a large volume of his or her communications. In any event, although the Court would agree that the additional requirements proposed by the applicants might constitute important safeguards in some cases, for the reasons set out below it does not consider it appropriate to add them to the list of minimum requirements in the case at hand.", "317. First of all, requiring objective evidence of reasonable suspicion in relation to the persons for whom data is being sought and the subsequent notification of the surveillance subject would be inconsistent with the Court’s acknowledgment that the operation of a bulk interception regime in principle falls within a State’s margin of appreciation. Bulk interception is by definition untargeted, and to require “reasonable suspicion” would render the operation of such a scheme impossible. Similarly, the requirement of “subsequent notification” assumes the existence of clearly defined surveillance targets, which is simply not the case in a bulk interception regime. 318.", "Judicial authorisation, by contrast, is not inherently incompatible with the effective functioning of bulk interception. Nevertheless, as the Venice Commission acknowledged in their report on the Democratic Oversight of Signals Intelligence Agencies (see paragraph 212 above), while the Court has recognised that judicial authorisation is an “important safeguard against arbitrariness” (see Roman Zakharov, cited above, § 249), to date it has not considered it to be a “necessary requirement” or the exclusion of judicial control to be outside “the limits of what may be deemed necessary in a democratic society” (see, for example, Roman Zakharov, cited above, § 258; see also Klass and Others, cited above, §§ 51 and 56; Weber and Saravia, cited above, § 115; Kennedy, cited above, § 167; and Szabó and Vissy, cited above, § 77). There would appear to be good reason for this. The Court has found it “desirable to entrust supervisory jurisdiction to a judge” because, as a result of the secret nature of the surveillance, the individual will usually be unable to seek a remedy of his or her own accord (see Roman Zakharov, cited above, § 233). However, that is not the case in every contracting State.", "In the United Kingdom, for example, any person who thinks that he or she has been subject to secret surveillance can lodge a complaint with the IPT (see paragraph 250 above). Consequently, in Kennedy the Court accepted that regardless of the absence of prior judicial authorisation, the existence of independent oversight by the IPT and the Interception of Communications Commissioner provided adequate safeguards against abuse (see Kennedy, cited above, §§ 167-169). In this regard, the Venice Commission also noted that independent oversight may be able to compensate for an absence of judicial authorisation (see paragraph 212 above). 319. Secondly, the Court has acknowledged that “the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system” (see Klass and Others, cited above, § 59), and one need only look at its most recent jurisprudence to find examples of cases where prior judicial authorisation provided limited or no protection against abuse.", "For example, in Roman Zakharov, any interception of communications had to be authorised by a court and the judge had to give reasons for the decision to authorise interceptions. However, as judicial scrutiny was limited in scope and the police had the technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation, the Court found that Russian law was incapable of keeping the “interference” to what was “necessary in a democratic society”. Similarly, in Association for European Integration and Human Rights and Ekimdzhiev the relevant law required judicial authorisation before interception could take place. Nevertheless, the Court found that numerous abuses had taken place (according to a recent report, more than 10,000 warrants were issued over a period of some twenty‑four months). More recently, in Mustafa Sezgin Tanrıkulu v. Turkey, no.", "27473/06, § 64, 18 July 2017 the Court found a violation of Article 8 where an assize court had granted the National Intelligence Agency permission to intercept all domestic and international communications for a month and a half with a view to identifying terrorist suspects. 320. Therefore, while the Court considers judicial authorisation to be an important safeguard, and perhaps even “best practice”, by itself it can neither be necessary nor sufficient to ensure compliance with Article 8 of the Convention (see Klass and Others, cited above, § 56). Rather, regard must be had to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92). Accordingly, the Court will examine the justification for any interference in the present case by reference to the six minimum requirements, adapting them where necessary to reflect the operation of a bulk interception regime.", "It will also have regard to the additional relevant factors which it identified in Roman Zakharov, but did not classify as “minimum requirements”; namely, the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law (see paragraph 307 above). (α) The existence of an interference 321. The Government do not dispute that there has been an interference with the applicants’ Article 8 rights. (β) Justification for the interference 322. As already noted, an interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more legitimate aims and is necessary in a democratic society in order to achieve any such aim (see paragraph 303 above).", "In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Roman Zakharov, cited above, § 236 and Kennedy, cited above, § 155). The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, but it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse. 323. The parties do not dispute that the section 8(4) regime had a basis in domestic law; nor do they dispute that the regime pursued the legitimate aims of the protection of national security, the prevention of crime and the protection of the economic well-being of the country. The applicants do, however, contest the quality of domestic law and, in particular, its accessibility and foreseeability.", "324. The Court will therefore assess in turn the accessibility of the domestic law, followed by its foreseeability and necessity, having regard to the six minimum requirements established in its case law, before turning its attention to the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law (see paragraph 307 above). - Accessibility 325. The applicants challenge the accessibility of domestic law on the grounds that it is too complex to be accessible to the public, and it relies on “below the waterline” arrangements. It is true that most of the reports into the United Kingdom’s secret surveillance regimes have criticised the piecemeal development – and subsequent lack of clarity – of the legal framework (see paragraphs 152, 162 and 167 above).", "However, as with other cases in which domestic law has been considered in abstracto and amendments have been made to the legislation while the application was pending (see, for example, Association for European Integration and Human Rights and Ekimdzhiev), in the present case the Court must review the Convention compliance of the law in force at the date of its examination of the applicants’ complaints. It therefore can, and should, take into account the IC Code which was amended in 2016 to clarify the legal framework and reflect the further disclosures which were made following the Snowden revelations and which are examined in detail in the ISC report, the Anderson report and the ISR report (see paragraphs 90, 148-150, 160-165 and 166-172 above). As the IC Code is a public document, subject to the approval of both Houses of Parliament, and has to be taken into account both by those exercising interception duties and by courts and tribunals, the Court has expressly accepted that its provisions could be taken into consideration in assessing the foreseeability of the RIPA regime (see Kennedy, cited above, § 157). 326. Insofar as the applicants complain about the existence of “below the waterline” arrangements, the Court has acknowledged that States do not have to make public all the details of the operation of a secret surveillance regime, provided that sufficient information is available in the public domain (see Roman Zakharov, cited above, §§ 243-244 and 247; see also, among many examples, Szabó and Vissy, cited above, § 64, and Kennedy, cited above, § 159).", "In the context of secret surveillance, it is inevitable that “below the waterline” arrangements will exist, and the real question for the Court is whether it can be satisfied, based on the “above the waterline” material, that the law is sufficiently foreseeable to minimise the risk of abuses of power. This is a question that goes to the foreseeability and necessity of the relevant law, rather than its accessibility. 327. Therefore, while the Court concurs with several of the aforementioned domestic reports that RIPA and the accompanying surveillance framework are extremely complex, in the present case it will concentrate on the requirements of “foreseeability” and “necessity”. - The scope of application of secret surveillance measures 328.", "The first two minimum requirements have traditionally been referred to as the nature of the offences which might give rise to an interception order and a definition of the categories of people liable to have their telephones tapped. In Roman Zakharov the Court made clear that pursuant to these two requirements “the national law must define the scope of application of secret surveillance measures by giving citizens an adequate indication as to the circumstances in which public authorities are empowered to resort to such measures” (see Roman Zakharov, cited above, §§ 243). 329. In a targeted interception regime, the nature of the communications to be intercepted should be tightly defined, but once interception takes place it is likely that all – or nearly all – of the intercepted communications are analysed. The opposite will normally be true of a bulk interception regime, where the discretion to intercept is broader, but stricter controls will be applied at the selection for examination stage.", "In fact, in the present case, it is clear from Chapter 6 of the IC Code (see paragraph 90 above), the ISC report (see paragraphs 151-159 above), the first IPT judgment in the Liberty proceedings (see paragraphs 41-49 above) and the Government’s observations that there are four distinct stages to the section 8(4) regime: 1. The interception of a small percentage of Internet bearers, selected as being those most likely to carry external communications of intelligence value. 2. The filtering and automatic discarding (in near real-time) of a significant percentage of intercepted communications, being the traffic least likely to be of intelligence value. 3.", "The application of simple and complex search criteria (by computer) to the remaining communications, with those that match the relevant selectors being retained and those that do not being discarded. 4. The examination of some (if not all) of the retained material by an analyst). 330. Thus, in addressing the first two minimum requirements, the Court will examine first, whether the grounds upon which a warrant can be issued are sufficiently clear; secondly, whether domestic law gives citizens an adequate indication of the circumstances in which their communications might be intercepted; and thirdly, whether domestic law gives citizens an adequate indication of the circumstances in which their communications might be selected for examination (see paragraph 328 above).", "331. According to RIPA and the IC Code, the Secretary of State can only issue a warrant if he is satisfied that it is necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or for the purpose of safeguarding the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security; and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. Pursuant to domestic law, when assessing necessity and proportionality, account should be taken of whether the information sought under the warrant could reasonably be obtained by other means (section 5(3) of RIPA and Chapter 6 of the IC Code – see paragraphs 57 and 90 above). It is clear that insofar as RIPA and the IC Code use the terms “necessity” and “proportionality” they are intended to ensure compliance with the requirements of Articles 8 and 10 of the Convention and should therefore be understood in the Convention sense (see paragraph 3.5 of the IC Code, at paragraph 90 above). 332.", "The Court has held that the condition of foreseeability does not require States to set out exhaustively by name the specific offences which may give rise to interception, provided that there is sufficient detail about the nature of the offences in question (see Roman Zakharov, cited above, §§ 243-244; see also, among many examples, Szabó and Vissy, cited above, § 64, and Kennedy, cited above, § 159). Moreover, the Court has expressly recognised the need to avoid excessive rigidity in the wording of certain statutes and to keep pace with changing circumstances (see Szabó and Vissy, cited above, § 64 and Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260‑A). 333. In Kennedy the Court had to consider whether the section 5(3) grounds (which apply to both section 8(1) and section 8(4) warrants) provided sufficient detail about the nature of the offences that might give rise to an interception order.", "It found that the term “national security” was frequently employed in both national and international legislation and constituted one of the legitimate aims to which Article 8 § 2 referred. It further noted that threats to national security tended to vary in character and might be unanticipated or difficult to define in advance. Finally, the Interception of Communications Commissioner had clarified that in practice “national security” allowed surveillance of activities which threatened the safety or well-being of the State and activities which were intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means. It therefore found the term to be sufficiently clear (see Kennedy, cited above, § 159). 334.", "Furthermore, the Court observes that “serious crime” is clearly defined in section 81 of RIPA (see paragraphs 58-59 above; see also Kennedy, cited above, § 159) and the IC Code has clarified that the purpose of safeguarding the economic well-being of the United Kingdom is restricted to those interests which are also relevant to the interests of national security (see paragraph 90 above). 335. The Court therefore considers that section 5(3) is sufficiently clear, giving citizens an adequate indication of the circumstances in which and the conditions on which a section 8(4) warrant might be issued. 336. As for the persons liable to have their communications intercepted, it is clear that this category is wide.", "Section 8(4) only permits the Secretary of State to issue a warrant for the interception of external communications, which in principle excludes communications where both of the parties are in the British Islands. Although there has been some confusion about the application of the terms “external communications” and “internal communications” to modern forms of communications, the Secretary of State for the Foreign and Commonwealth, in giving evidence to the Intelligence and Security Committee of Parliament in October 2014, provided clarification about the status of emails, web-browsing, social media and cloud storage (see paragraph 71 above). However, even where it is clear that a communication is “internal”, as it is between two people in the British Islands, in practice, some or all of its parts might be routed through one or more other countries, and would therefore be at risk of being intercepted under the section 8(4) regime. This is expressly permitted by section 5(6) of RIPA, which allows the interception of communications not identified in the warrant (see paragraph 63 above). 337.", "That being said, it is clear that the targeted bearers are not chosen at random. They are selected because they are believed to be the most likely to carry external communications of intelligence interest (paragraph 6.7 of the IC Code, at paragraph 90 above and the Annual Report of the Interception of Communications Commissioner for 2016, at paragraph 178 above). Therefore, while anyone could potentially have their communications intercepted under the section 8(4) regime, it is clear that the intelligence services are neither intercepting everyone’s communications, nor exercising an unfettered discretion to intercept whatever communications they wish. In practice, one of the grounds set out in section 5(3) of RIPA must be satisfied, bulk interception must be proportionate to the aim sought to be achieved, and – at least at the macro level of selecting the bearers for interception – only external communications can be targeted. 338.", "As the ISC observed, it would be desirable for the criteria for selecting the bearers to be subject to greater oversight by the Commissioner (see paragraph 157 above). However, the Court has already noted that by its very nature a bulk interception regime will allow the authorities a broad discretion to intercept communications and, as such, it does not consider this fact alone to be fatal to the Article 8 compliance of the section 8(4) regime. While the discretion to intercept should not be unfettered – since the interception and filtering of a communication, even if it is subsequently discarded in near real-time, is sufficient to constitute an interference with a persons’ rights under Article 8 of the Convention –, more rigorous safeguards will be required at the third and fourth stages identified in paragraph 329 above, as any interference in such cases will be significantly greater. 339. With regard to the selection of communications for examination, once communications are intercepted and filtered, those not discarded in near real-time are further searched; in the first instance by the automatic application, by computer, of simple selectors (such as email addresses or telephone numbers) and initial search criteria, and subsequently by the use of complex searches (see paragraph 6.4 of the IC Code at paragraph 90; see also the ISC report at paragraphs 151-159 above and the Government’s observations in the present case).", "In Liberty and Others, the Court compared the predecessor of the section 8(4) regime unfavourably with the German system under consideration in Weber and Saravia, noting that the G10 Act authorised the Federal Intelligence Service to carry out monitoring of communications only with the aid of search terms which served, and were suitable for, the investigation of the dangers described in the monitoring order and which search terms had to be listed in the monitoring order (Liberty and Others, cited above, § 68 and Weber and Saravia, cited above, § 32). 340. This does not mean that selectors and search criteria need to be made public; nor does it mean that they necessarily need to be listed in the warrant ordering interception. In fact, in the Liberty proceedings the IPT found that the inclusion of the selectors in the warrant or accompanying certificate would “unnecessarily undermine and limit the operation of the warrant and be in any event entirely unrealistic” (see paragraph 44 above). The Court has no reason to call this conclusion into question.", "Nevertheless, the search criteria and selectors used to filter intercepted communications should be subject to independent oversight; a safeguard which appears to be absent in the section 8(4) regime. Indeed, the ISC report criticised the absence of any meaningful oversight of both the selectors and search criteria (see paragraph 157 above). 341. As a result of the application of selectors and automated searches, an index is generated. Material not on the index is discarded.", "Only material on the index may be examined by an analyst, and only if it satisfies the two criteria in section 16 of RIPA, namely certification by the Secretary of State as to necessity (section 16(1); see paragraphs 78-85 above) and presence for the time being in the British Islands (section 16(2)). 342. As regards the certification by the Secretary of State, the ISC observed that the categories set out in the certificates were set out in very general terms (for example, “material providing intelligence on terrorism (as defined by the Terrorism Act 2000 (as amended)) including, but not limited to, terrorist organisations, terrorists, active sympathisers, attack planning, fund-raising”) (see paragraph 156 above). Similarly, the Independent Reviewer of Terrorism Legislation recommended that the purposes for which material or data was sought should be spelled out by reference to specific operations or mission purposes (for example, “attack planning by ISIL in Iraq/Syria against the UK”) (see paragraph 162 above). In order for this safeguard to be effective, the Court agrees that it would be highly desirable for the certificate to be expressed in more specific terms than it currently appears to be.", "343. On the other hand, the exclusion of communications of individuals known currently to be in the British Islands is, in the opinion of the Court, an important safeguard, since persons of interest to the intelligence services who are known to be in the British Islands could be subject to a targeted warrant under section 8(1) of RIPA. The intelligence services should not be permitted to obtain via a bulk warrant what they could obtain via a targeted warrant. 344. According to paragraph 7.18 of the IC Code, periodic audits should be carried out to ensure that the requirements set out in section 16 of RIPA are being met and any breaches of safeguards should be notified to the Interception of Communications Commissioner (see paragraph 90 above).", "In his 2016 annual report, echoing comments also made in his 2014 and 2015 reports, the Commissioner observed that the process by which analysts selected material for examination, which did not require pre-authorisation by a more senior operational manager, relied mainly on the professional judgment of analysts, their training and subsequent management oversight (see paragraph 179 above). 345. On balance, the Court agrees that it would be preferable for the selection of material by analysts to be subject at the very least to pre-authorisation by a senior operational manager. However, given that analysts are carefully trained and vetted, records are kept and those records are subject to independent oversight and audit (see paragraph 7.15 and 7.18 of the IC Code, at paragraph 90 above), the absence of pre-authorisation would not, in and of itself, amount to a failure to provide adequate safeguards against abuse. 346.", "Nevertheless, the Court must have regard to the operation of the section 8(4) regime as a whole, and in particular the fact that the list from which analysts are selecting material is itself generated by the application of selectors and selection criteria which were not subject to any independent oversight. In practice, therefore, the only independent oversight of the process of filtering and selecting intercept data for examination is the post factum audit by the Interception of Communications Commissioner and, should an application be made to it, the IPT. In Kennedy the Court held that the RIPA procedure for examining intercept material was sufficiently clear. That finding, however, was expressly based on the fact that unlike the regime examined in Liberty and Others, which concerned the indiscriminate capturing of data, that case was concerned with an interception warrant for one set of premises only; a fact which in and of itself limited the scope of the authorities’ discretion to intercept and listen to private communications (see Kennedy, cited above, § 162). In a bulk interception regime, where the discretion to intercept is not significantly curtailed by the terms of the warrant, the safeguards applicable at the filtering and selecting for examination stage must necessarily be more robust.", "347. Therefore, while there is no evidence to suggest that the intelligence services are abusing their powers – on the contrary, the Interception of Communications Commissioner observed that the selection procedure was carefully and conscientiously undertaken by analysts (see paragraph 179 above) –, the Court is not persuaded that the safeguards governing the selection of bearers for interception and the selection of intercepted material for examination are sufficiently robust to provide adequate guarantees against abuse. Of greatest concern, however, is the absence of robust independent oversight of the selectors and search criteria used to filter intercepted communications. - The exemption of related communications data from the safeguards applicable to the searching and examining of content 348. The Article 8(4) regime permits the bulk interception of both content and related communications data (the latter being the “who, when and where” of a communication).", "However, section 16 applies only to “intercepted material” which, according to the interpretation provision in section 20 of RIPA, is defined as the content of intercepted communications (see paragraph 78 above). The related communications data of all intercepted communications – even internal communications incidentally intercepted as a “by-catch” of a section 8(4) warrant – can therefore be searched and selected for examination without restriction. 349. The Government contend that access to communications data is necessary to give effect to one of the section 16 safeguards, namely to determine whether a person is or is not in the British Islands. They further contend that as communications data is less intrusive than data relating to content (at least when compared on a like-for-like basis), its interception, storage and use should not be subject to the same six minimum requirements (see paragraph 307 above).", "Instead, the Court should simply ask whether the law was sufficiently clear to give the individual adequate protection against arbitrary interference. 350. The Court has distinguished between different methods of investigation which result in different levels of intrusion into an individual’s private life. According to the Court, the interception of communications represents one of the gravest intrusions, as it is capable of disclosing more information on a person’s conduct, opinions or feelings (see Uzun v. Germany, no. 35623/05, § 52, ECHR 2010 (extracts))).", "Consequently, in Uzun the Court found that the interception of communications represented a greater intrusion into an individual’s private life than the tracking of his vehicle via GPS (see Uzun, cited above, § 52). In Ben Faiza v. France, no. 31446/12, 8 February 2018, it further distinguished between the tracking of a vehicle, which nevertheless made it possible to geolocate a person in real time, and the lower level of intrusion occasioned by the transmission to a judicial authority of existing data held by a public or private body (see Ben Faiza, cited above, § 74). 351. However, thus far the Court has only declined to apply the minimum requirements test in secret surveillance cases which did not involve the interception of communications, and in which the degree of intrusion was not considered to be comparable to that caused by interception (see for example, R.E.", "v. the United Kingdom, no. 62498/11, 27 October 2015 and Uzun, cited above). 352. In any event, it is not necessary for the Court to decide whether the six minimum requirements apply to the interception of communications data since, save for the section 16 safeguards, the section 8(4) regime treats intercepted content and related communications data in the same way. It will therefore focus its attention on whether the justification provided by the Government for exempting related communications data from this safeguard is proportionate to the legitimate aim pursued; that is, ensuring the effectiveness of that safeguard in respect of content.", "353. It is not in doubt that communications data is a valuable resource for the intelligence services. It can be analysed quickly to find patterns that reflect particular online behaviours associated with activities such as a terrorist attack and to illuminate the networks and associations of persons involved in such attacks, making it invaluable in fast-moving operations; and, unlike much data relating to content, it is not generally encrypted (see paragraphs 158, 163, 169, 176 and 301 above). 354. Furthermore, the Court accepts that the effectiveness of the section 16(2) safeguard depends on the intelligence services having a means of determining whether a person is in the British Islands, and access to related communications data would provide them with that means.", "355. Nevertheless, it is a matter of some concern that the intelligence services can search and examine “related communications data” apparently without restriction. While such data is not to be confused with the much broader category of “communications data”, it still represents a significant quantity of data. The Government confirmed at the hearing that “related communications data” obtained under the section 8(4) regime will only ever be traffic data. However, according to paragraphs 2.24-2.27 of the ACD Code (see paragraph 117 above), traffic data includes information identifying the location of equipment when a communication is, has been or may be made or received (such as the location of a mobile phone); information identifying the sender or recipient (including copy recipients) of a communication from data comprised in or attached to the communication; routing information identifying equipment through which a communication is or has been transmitted (for example, dynamic IP address allocation, file transfer logs and e-mail headers (other than the subject line of an e-mail, which is classified as content)); web browsing information to the extent that only a host machine, server, domain name or IP address is disclosed (in other words, website addresses and Uniform Resource Locators (“URLs”) up to the first slash are communications data, but after the first slash content); records of correspondence checks comprising details of traffic data from postal items in transmission to a specific address, and online tracking of communications (including postal items and parcels) (see paragraph 117 above).", "356. In addition, the Court is not persuaded that the acquisition of related communications data is necessarily less intrusive than the acquisition of content. For example, the content of an electronic communication might be encrypted and, even if it were decrypted, might not reveal anything of note about the sender or recipient. The related communications data, on the other hand, could reveal the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. In bulk, the degree of intrusion is magnified, since the patterns that will emerge could be capable of painting an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with (see paragraph 301 above).", "357. Consequently, while the Court does not doubt that related communications data is an essential tool for the intelligence services in the fight against terrorism and serious crime, it does not consider that the authorities have struck a fair balance between the competing public and private interests by exempting it in its entirety from the safeguards applicable to the searching and examining of content. While the Court does not suggest that related communications data should only be accessible for the purposes of determining whether or not an individual is in the British Islands, since to do so would be to require the application of stricter standards to related communications data than apply to content, there should nevertheless be sufficient safeguards in place to ensure that the exemption of related communications data from the requirements of section 16 of RIPA is limited to the extent necessary to determine whether an individual is, for the time being, in the British Islands. - Duration of the secret surveillance measure 358. Pursuant to section 9 of RIPA (see paragraph 62 above), a section 8(4) warrant ceases to have effect at the end of the “relevant period” unless it is renewed.", "For warrants issued by the Secretary of State for reasons of national or economic security, the “relevant period” is six months, and for warrants issued by the Secretary of State for the purposes of preventing serious crime, the “relevant period” is three months. These warrants are renewable for periods of six and three months respectively. Warrants may be renewed at any point before their expiry date by application to the Secretary of State. The application must contain the same information as the original application; it must also contain an assessment of the value of the interception to date and explain why the continuation of interception is necessary, within the meaning of section 5(3), and proportionate (see paragraph 6.22-6.24 of the IC Code at paragraph 90 above). Paragraph 6.7 of the IC Code requires regular surveys of relevant communications links (see paragraph 90 above).", "Consequently, any application for renewal of a warrant would have to show that interception of those links continued to be of value, and continued to be necessary and proportionate (in the Convention sense). 359. Furthermore, the Secretary of State must cancel a warrant if satisfied that it is no longer necessary on section 5(3) grounds (see section 9 of RIPA at paragraph 62 above). 360. In Kennedy (cited above, § 161) the Court considered the same provisions on the duration and renewal of interception warrants (in that case, in the context of the section 8(1) regime) and found that the rules were sufficiently clear as to provide adequate safeguards against abuse.", "In particular, it noted that the duty on the Secretary of State to cancel warrants which were no longer necessary meant, in practice, that the intelligence services had to keep their warrants under continuous review. In light of the foregoing considerations, the Court sees no grounds upon which to reach a different conclusion in the present case. In particular, it sees no evidence to substantiate the applicants’ claim that once issued, section 8(4) warrants could continue indefinitely regardless of whether they continued to be necessary and proportionate. - Procedure to be followed for storing, accessing, examining and using the intercepted data 361. As already noted, analysts may only examine material which appears on the automatically generated index.", "Prior to analysts being able to read, look at or listen to material on the index, they must make a record of why access to the material is necessary for one of the statutory purposes set out in section 5(3) of RIPA, and proportionate, having regard to whether the information could reasonably be obtained by less intrusive means (see sections 16(1) and (2) of RIPA, at paragraphs 78-79 above, and paragraphs 7.15 and 7.16 of the IC Code, at paragraph 90 above). Pursuant to section 16(2), they cannot select material for examination using criteria that refer to the communications of individuals known currently to be in the British Islands (see paragraph 79 above). Paragraph 7.16 of the IC Code also requires the analyst to indicate any circumstances likely to give rise to a degree of collateral infringement of privacy, together with the measures taken to reduce the extent of that intrusion (see paragraph 90 above). Subsequent access by the analyst is limited to a defined period of time; although that period of time may be renewed, the record must be updated giving reasons for renewal (see paragraph 7.17 of the IC Code, at paragraph 90 above). 362.", "Paragraph 7.15 of the IC Code further requires that analysts examining intercepted material must be specially authorised to do so; must receive regular mandatory training regarding on the provisions of RIPA and specifically the operation of section 16 and the requirements of necessity and proportionality; and must be vetted (see paragraph 90 above). Furthermore, regular audits are carried out which must include checks to ensure that the records requesting access to material have been compiled correctly, and that the material requested falls within the matters certified by the Secretary of State (see paragraph 7.18 of RIPA, at paragraph 90 above). 363. With regard to the storage of intercepted material, paragraph 7.7 of the IC Code requires that prior to its destruction, it must be stored securely and must not be accessible to persons without the required level of security clearance (see paragraph 90 above). 364.", "In light of the foregoing, and subject to its conclusions at paragraph 347 and 357 above, the Court would accept that the provisions relating to the storing, accessing, examining and using intercepted data are sufficiently clear. - Procedure to be followed for communicating the intercepted data to other parties 365. While material is being stored, section 15(2) of RIPA and paragraphs 7.2 of the IC Code require that the following are limited to the minimum necessary for the “authorised purposes”: the number of persons to whom the material or data is disclosed or made available; the extent to which the material or data is disclosed or made available; the extent to which the material or data is copied; and the number of copies that are made (see paragraphs 72-77 and 90 above). Pursuant to section 15(4) and paragraph 7.2 of the IC Code, something is necessary for the authorised purposes if, and only if, it continues to be, or is likely to become, necessary for the purposes mentioned in section 5(3) of RIPA; for facilitating the carrying out of any of the interception functions of the Secretary of State; for facilitating the carrying out of any functions of the Interception of Communications Commissioner or of the IPT; to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution; or for the performance of any duty imposed on any person under public records legislation (see paragraphs 72-77 and 90 above). 366.", "Paragraph 7.3 of the IC Code prohibits disclosure to persons who have not been appropriately vetted and also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person’s duties, which must relate to one of the authorised purposes, are such that he or she needs to know about the intercepted material to carry out those duties (see paragraph 90 above). In the same way, only so much of the intercepted material may be disclosed as the recipient needs. Paragraph 7.3 applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. Pursuant to paragraph 7.4, it also applies not just to the original interceptor, but also to anyone to whom the intercepted material is subsequently disclosed (see paragraph 90 above). 367.", "According to paragraph 7.5 of the IC Code, where intercepted material is disclosed to the authorities of a country or territory outside the United Kingdom, the agency must take reasonable steps to ensure that the authorities in question have and will maintain the necessary procedures to safeguard the intercepted material, and to ensure that it is disclosed, copied, distributed and retained only to the minimum extent necessary. The intercepted material must not be further disclosed to the authorities of a third country or territory unless explicitly agreed with the issuing agency, and must be returned to the issuing agency or securely destroyed when no longer needed (see paragraph 90 above). 368. The Court considered very similar provisions in Kennedy; although paragraph 7.5 is new, paragraphs 7.3, 7.4 and 7.6 in the 2016 IC Code are identical to paragraphs 6.4, 6.5 and 6.6 of the previous version. It was satisfied that the provisions on processing and communication of intercept material provided adequate safeguards for the protection of data obtained (see Kennedy, cited above, § 163).", "In the present case, however, the applicants have expressed concern about an aspect of the procedure which was not addressed in Kennedy; namely, the requirement that disclosure and copying be “limited to the minimum necessary for the ‘authorised purposes’”, when something might be considered “necessary” for an “authorised purpose” if it was “likely to become necessary”. As “likely to become necessary” is not further defined in RIPA or the IC Code, or indeed anywhere else, it could in practice give the authorities a broad power to disclose and copy intercept material. Nevertheless, it is clear that even if disclosure or copying is “likely to become necessary” for an “authorised purpose”, the material can still only be disclosed to a person with the appropriate level of security clearance, who has a “need to know”. Furthermore, only so much of the intercept material as the individual needs to know is to be disclosed; where a summary of the material would suffice, then only a summary should be disclosed. 369.", "Therefore, while it would be desirable for the term “likely to become necessary” to be more clearly defined in either RIPA or the IC Code, the Court considers that, taken as a whole, section 15 of RIPA and Chapter 7 of the IC Code provide adequate safeguards for the protection of data obtained. - The circumstances in which intercept material must be erased or destroyed 370. Section 15(3) of RIPA and paragraph 7.8 of the IC Code require that every copy of intercepted material or data (together with any extracts and summaries) be destroyed securely as soon as retention is no longer necessary for any of the section 5(3) purposes (see paragraphs 74 and 90 above). In practice, this means that intercepted material which is filtered out in near real-time is destroyed. Similarly, following the application of selectors and search criteria, material which is not added to the analyst’s index is also destroyed (see paragraphs 72-77 and 90 above).", "371. Paragraph 7.9 provides that where an intelligence service receives unanalysed intercepted material and related communications data from interception under a section 8(4) warrant, it must specify maximum retention periods for different categories of the data which reflect its nature and intrusiveness. These specified periods should normally be no longer than two years, and should be agreed with the Interception of Communications Commissioner. So far as possible, all retention periods should be implemented by a process of automated deletion, which is triggered once the applicable maximum retention period has been reached for the data at issue (see paragraphs 72-77 above). Pursuant to paragraph 7.8, if intercepted material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section 15(3) of RIPA (see paragraph 90 above).", "372. According to the 2016 annual report of the Interception of Communications Commissioner, every interception agency had a different view on what constituted an appropriate retention period for intercepted material and related communications data. The retention periods for content ranged between thirty days and one year and the retention periods for related communications data ranged between six months and one year (see paragraph 186 above). Therefore, while the specific retention periods are not in the public domain, it is clear that they cannot exceed two years and, in practice, they do not exceed one year (with much content and related communications data being retained for significantly shorter periods). 373.", "Furthermore, where an application is lodged with the IPT, it can examine whether the time-limits for retention have been complied with and, if they have not, it may find that there has been a breach of Article 8 of the Convention and order the destruction of the relevant material. Where the retention has resulted in damage, detriment or prejudice, compensation may also be awarded. In the Liberty proceedings, brought by the applicants in the third of the joined cases, the IPT found that there had been a breach of Article 8 of the Convention by virtue of the fact that email communications of Amnesty International, which had been intercepted and accessed “lawfully and proportionately”, had nevertheless been retained for longer than was permitted under GCHQ’s internal policies. GCHQ was ordered to destroy the communications within seven days, and to provide a closed report within fourteen days confirming their destruction. A hard copy of the communications was to be delivered to the Commissioner (see paragraph 54 above).", "374. Therefore, in the Court’s view the provisions on the erasure and destruction of intercept material are also sufficiently clear. - Supervision, notification and remedies 375. Supervision of the regime is carried out at a number of levels. First of all, according to the Interception of Communications Commissioner, a “critical quality assurance function [is] initially carried out by the staff and lawyers within the intercepting agency or the warrant-granting department” (see paragraph 180 above).", "The warrant-granting departments provide independent advice to the Secretary of State and perform important pre-authorisation scrutiny of warrant applications and renewals to ensure that they were (and remained) necessary and proportionate (see paragraph 180 above). 376. Secondly, section 8(4) warrants must be authorised by the Secretary of State. As already noted, while the Court has recognised judicial authorisation to be an “important safeguard against arbitrariness” (see Roman Zakharov, cited above, § 249), to date it has not considered it to be a “necessary requirement” (see, for example, Roman Zakharov, cited above, § 258; see also Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; Kennedy, cited above, § 31; and Szabó and Vissy, cited above, § 77). Although desirable in principle, by itself it is neither necessary nor sufficient to ensure compliance with Article 8 of the Convention (see paragraphs 318-320 above).", "377. It is true that the Court has generally required a non-judicial authority to be sufficiently independent of the executive (see Roman Zakharov, cited above, § 258). However, it must principally have regard to the actual operation of a system of interception as a whole, including the checks and balances on the exercise of power, and the existence (or absence) of any evidence of actual abuse (see paragraph 320 above), such as the authorising of secret surveillance measures haphazardly, irregularly or without due and proper consideration (see Roman Zakharov, cited above, § 267). 378. In the present case there is no evidence to suggest that the Secretary of State was authorising warrants without due and proper consideration.", "The authorisation procedure was subject to independent oversight by the Interception of Communications Commissioner (recently replaced by the Investigatory Powers Commissioner following the coming into force of the Investigatory Powers Act 2016 – see paragraph 147 above), who was independent of the executive and the legislature, held or had held high judicial office, and was tasked with overseeing the general functioning of the surveillance regime and the authorisation of interception warrants in specific cases. The Commissioner reported annually to the Prime Minister and his report was a public document (subject to the non-disclosure of confidential annexes) which was laid before Parliament. In undertaking his review of surveillance practices, he was granted access to all relevant documents, including closed materials, and all those involved in interception activities had a duty to disclose to him any material he required. The obligation on the intelligence services to keep records ensured that he had effective access to details of surveillance activities undertaken (see paragraph 145 above). In 2016, 970 warrants were examined during twenty‑two interception inspections, representing 61% of the number of warrants in force at the end of the year and 32% of the total of new warrants issued in 2016 (see paragraph 185 above).", "As a consequence, in Kennedy the Court accepted that despite the fact that the section 8(1) warrant was authorised by the Secretary of State, sufficient independence was provided by the Interception of Communications Commissioner (see Kennedy, cited above, § 166). 379. Furthermore, the IPT has extensive jurisdiction to examine any complaint of unlawful interception: unlike in many other countries, its jurisdiction does not depend on notification of the interception to its subject (see paragraph 124 above), which means that any person who believes that he or she has been subject to secret surveillance may make an application to it (see paragraph 318 above). Its members must hold or have held high judicial office or be a qualified lawyer of at least ten years’ standing (see paragraph 123 above). Those involved in the authorisation and execution of an intercept warrant are required to disclose to it all the documents it may require, including “below the waterline” documents which could not be made public for reasons of national security (see paragraph 127 above); it has discretion to hold oral hearings, in public, where possible (see paragraphs 131, 138 and 139 above); in closed proceedings it may appoint Counsel to the Tribunal also to make submissions on behalf of claimants who cannot be represented (see paragraph 142 above); and when it determines a complaint it has the power to award compensation and make any other order it sees fit, including quashing or cancelling any warrant and requiring the destruction of any records (see paragraph 128 above).", "The publication of the IPT’s legal rulings further enhances the level of scrutiny afforded to secret surveillance activities in the United Kingdom (see Kennedy, cited above, § 167). 380. In any case, the Court notes that under the new Investigatory Powers Act 2016 warrants will have to be approved by judicial commissioners following their authorisation by the Secretary of State. Although this new procedure has not yet been implemented, the Investigatory Powers Commissioner and the deputy Investigatory Powers Commissioner have been appointed (see paragraph 197 above). 381.", "Therefore, while the Court considers judicial authorisation to be highly desirable and, in its absence, will generally require a non-judicial authority to be independent of the executive, in the present case, in view of the pre-authorisation scrutiny of warrant applications, the extensive post-authorisation scrutiny provided by the (independent) Commissioner’s office and the IPT, and the imminent changes to the impugned regime, it would accept that the authorisation of section 8(4) warrants by the Secretary of State does not, in and of itself, give rise to a breach of Article 8 of the Convention. 382. Finally, the Court recalls that in light of the Edward Snowden revelations, there were three thorough independent reviews of the existing interception regimes, and none of the reviewing bodies found any evidence that deliberate abuse of interception powers was taking place (see paragraphs 148-172 above). 383. In light of the above considerations, the Court is of the opinion that the supervision and oversight of the bulk interceptions capable of providing adequate and effective guarantees against abuse.", "- Proportionality 384. With regard to the proportionality of the bulk interception regime, the Court notes that the Independent Reviewer of Terrorism Legislation, examined a great deal of closed material and concluded that bulk interception was an essential capability: first, because terrorists, criminals and hostile foreign intelligence services had become increasingly sophisticated at evading detection by traditional means; and secondly, because the nature of the global Internet meant that the route a particular communication would travel had become hugely unpredictable. Although he and his team (including a person with the necessary technical background to understand the systems and techniques used by GCHQ, and the uses to which they could be put, an investigator with experience as a user of secret intelligence, including intelligence generated by GCHQ, and senior independent counsel with the skills and experience to challenge forensically the evidence and the case studies presented by the security and intelligence services) looked at alternatives to bulk interception (including targeted interception, the use of human sources and commercial cyber-defence products), they concluded that no alternative or combination of alternatives would be sufficient to substitute for the bulk interception power (see paragraph 176 above). 385. Similarly, while acknowledging the risks that bulk interception can pose for individual rights, the Venice Commission nevertheless recognised its intrinsic value for security operations, since it enabled the security services to adopt a proactive approach, looking for hitherto unknown dangers rather than investigating known ones (see paragraph 211 above).", "386. The Court sees no reason to disagree with the thorough examinations carried out by these bodies and the conclusions subsequently reached. It is clear that bulk interception is a valuable means to achieve the legitimate aims pursued, particularly given the current threat level from both global terrorism and serious crime. (γ) Conclusions 387. In light of the foregoing considerations, the Court considers that the decision to operate a bulk interception regime was one which fell within the wide margin of appreciation afforded to the Contracting State.", "Furthermore, in view of the independent oversight provided by the Interception of Communications Commissioner and the IPT, and the extensive independent investigations which followed the Edward Snowden revelations, it is satisfied that the intelligence services of the United Kingdom take their Convention obligations seriously and are not abusing their powers under section 8(4) of RIPA. Nevertheless, an examination of those powers has identified two principal areas of concern; first, the lack of oversight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst; and secondly, the absence of any real safeguards applicable to the selection of related communications data for examination. 388. In view of these shortcomings and to the extent just outlined, the Court finds that the section 8(4) regime does not meet the “quality of law” requirement and is incapable of keeping the “interference” to what is “necessary in a democratic society”. There has accordingly been a violation of Article 8 of the Convention.", "B. The intelligence sharing regime 389. The applicants in the third of the joined cases complain that the respondent State’s receipt of material intercepted by the NSA under PRISM and Upstream was in breach of their rights under Article 8 of the Convention. The applicants in the first of the joined cases complain more generally about the receipt of information from foreign intelligence services. 1.", "Admissibility (a) The parties’ submissions 390. The Government argued that the applicants could not claim to be victims of the alleged violation within the meaning of Article 34 of the Convention since they could not possibly have been affected by the intelligence sharing regime. They did not contend, and had put forward no evidential basis for contending, that their communications had in fact been intercepted under PRISM/Upstream and subsequently shared with the United Kingdom intelligence services. Rather, they asserted only that their communications “might have been” subject to foreign interception conveyed to United Kingdom authorities, or that they “believed” that to be the case. As such, their complaint was an abstract one about the regime itself, and the Court should not entertain an abstract challenge when the applicants had available to them an effective remedy in the form of the IPT.", "391. The applicants, on the other hand, submitted that on account of their global public interest activities and the very broad range of persons and organisations with which they were in contact, they were at genuine risk of having their communications obtained by a foreign intelligence service and requested by the United Kingdom authorities. They further submitted that there was no adequate remedy available under domestic law for the alleged breach of their Convention rights. (b) The Court’s assessment 392. The Court has accepted that an applicant could claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions were satisfied: first, the Court would examine whether the applicant could possibly be affected by the legislation permitting secret surveillance measures; and secondly, it would take into account the availability of remedies at the national level and adjust the degree of scrutiny depending on the effectiveness of such remedies.", "Where the domestic system did not afford an effective remedy, there would be a greater need for scrutiny by the Court and the individual would not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures (Roman Zakharov, cited above, § 171). 393. In the present case the Court has accepted that the IPT offers an effective remedy to anyone who wishes to complain about an interference with his or her communications by the United Kingdom authorities (see paragraphs 250-266 above).It has jurisdiction to investigate any complaint that a person’s communications have been intercepted and, where interception has occurred, to examine the authority for such interception (see paragraph 124 above). This jurisdiction clearly extends to complaints about the receipt of intelligence from foreign intelligence services.", "Indeed, in the Liberty proceedings the IPT considered the applicants’ complaints about both the section 8(4) regime and the intelligence sharing regime with equal diligence (see paragraphs 32-40 above). Consequently, the applicants can only claim to be “victims” on account of the mere existence of the intelligence sharing regime if they are able to show that, due to their personal situation, they were potentially at risk of having their communications obtained by the United Kingdom authorities through a request to a foreign intelligence service (see Roman Zakharov, cited above, § 171). 394. According to Chapter 12 of the IC Code, absent exceptional circumstances intelligence can only be requested from third countries where there is already a section 8(1) or section 8(4) warrant in place. This means that there must either be an Article 8(1) warrant in relation to the subject at issue, or a section 8(4) warrant and accompanying certificate which covers the subject’s communications (see paragraph 90 above).", "However, section 8(4) warrants are relatively broad in scope, and the Court has already considered the general terms in which both warrants and accompanying certificates are drafted (see paragraphs 156 and 341 above). Moreover, it is clear from the Liberty proceedings that at least two of the applicants in the third of the joined cases had their communications lawfully intercepted and selected for examination by the United Kingdom intelligence services under the section 8(4) regime (see paragraphs 54 and 55 above). While there is no reason to believe that these applicants were themselves of interest to the intelligence services, their communications could have been obtained lawfully under the section 8(4) regime if, as they claim, they were in contact with persons who were. Similarly, their communications could lawfully be requested from a third country under the intelligence sharing regime if they were in contact with an individual who was the subject of a request. 395.", "The Court would therefore accept, on the basis of the information submitted to it, that the applicants were potentially at risk of having their communications requested from a foreign intelligence service. In addition, it would accept that they were also potentially at risk of having their communications obtained by a foreign intelligence service. Although the United States of America is not the only country from which the authorities of the respondent State might request intelligence, the submissions before this Court – and before the IPT – focused on the receipt of information from the NSA. While PRISM is a targeted scheme which allows intelligence material to be obtained from Internet Service Providers (“ISPs”), Upstream appears to be a bulk interception scheme similar to the section 8(4) regime. In other words, it permits broad access to global data, in particular that of non-US citizens, which can then be collected, stored and searched using keywords.", "396. In light of the foregoing considerations, the Court would accept that the applicants were potentially at risk of having their communications obtained by the intelligence services of the respondent State under the intelligence sharing regime. As such, it finds that they can claim to be victims, within the meaning of Article 34 of the Convention, of the violation alleged to flow from the intelligence sharing regime. 397. 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. 2. Merits (a) The parties’ submissions (i) The applicants 398. The applicants submitted that even following the 9 October disclosure, there remained no basis in law for the intelligence sharing carried out by the intelligence services, and there was certainly no regime which satisfied the Court’s “quality of law” requirements.", "399. With regard to the test to be applied, the applicants contended that an interference with the rights protected by Article 8 of the Convention was no less serious when a third State shared the intelligence with the respondent State than when the respondent State conducted the surveillance itself. In R.E. the Court held that in determining whether the six minimum requirements applied the decisive factor would be the level of interference with an individual’s right to respect for his or private life, and not the technical definition of that interference (R.E., cited above, § 130). Since the degree of interference caused by the receipt of intelligence from third countries was similar to that caused by direct interception on the part of the respondent State, how that interference was technologically achieved should be irrelevant.", "400. In the opinion of the applicants, the publication of the revised IC Code in 2016 was insufficient the remedy the flaws in the regime identified by the IPT as it simply applied the inadequate RIPA regime to the obtaining of data intercepted by a foreign Government. (ii) The Government 401. The Government submitted that the intelligence sharing regime now had a basis in domestic law (namely, the Security Services Act 1989 (“the SSA”) and the Intelligence Services Act 1994 (“the ISA”), as read with the Counter Terrorism Act 2008 (“the CTA”); the Human Rights Act 1998 (“the HRA”); the Data Protection Act 1998 (“the DPA”); the Official Secrets Act 1989 (“the OSA”); and Chapter 12 of the IC Code) and that law was clearly accessible. 402.", "They further argued that it was foreseeable as the law indicated the scope of any discretion and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference. They did not accept that the six criteria set down in Weber and Saravia (see paragraph 307 above) applied to an intelligence sharing regime in the same way as they applied to an interception regime. In this regard, the Court had expressly recognised that the strict standards developed in intercept cases did not necessarily apply in other surveillance cases (for example, Uzun, cited above). While some of the material obtained from foreign governments might be the product of intercept, that would not necessarily be the case and the intelligence services might not even know whether communications provided to them by a foreign Government were the product of intercept. 403.", "Even if the six minimum requirements did apply, the Government argued that they were satisfied. First, the regime was sufficiently clear as regards the circumstances in which the intelligence services could in principle obtain information from other States; they could only obtain information so far as it was necessary for the proper discharge of their functions, being the interests of national security, the economic well-being of the United Kingdom, and the prevention and detection of serious crime. 404. Moreover, the circumstances in which the intelligence agencies could obtain information under the intelligence sharing regime were defined and circumscribed by the IC Code. In this regard, the effect of Chapter 12 of the Code was to confirm that, other than in exceptional circumstances, the intelligence services could only request “raw intercept” from a foreign government if it concerned targets who were already the subject of an interception warrant under Part I of RIPA, that material could not be obtained by the intelligence services themselves, and it was necessary and proportionate to obtain it.", "In the absence of a warrant, a request could only be made if it did not amount to a deliberate circumvention, or otherwise frustrate the objectives, of RIPA. Furthermore, any request made in the absence of a warrant would be decided on by the Secretary of State personally, and if the request was for “untargeted” material, communications obtained could not be examined according to any of the factors mentioned in section 16(2) of RIPA. 405. The Government further contended that the intelligence sharing regime was sufficiently clear as regards the subsequent handling, use and possible onward disclosure of material. Not only were the intelligence services bound by the general constraints of proportionality in the HRA and the fifth and seventh data protection principles, but Chapter 12 of the IC Code also provided that intercepted communications data or content received from another State, regardless of whether it was solicited or unsolicited, analysed or unanalysed, was subject to exactly the same rules and safeguards as material obtained directly by the intelligence services by interception under RIPA.", "In other words, the safeguards set out in section 15 of RIPA also applied to intercept material obtained under the intelligence sharing regime. 406. Finally, the Government pointed out that the intelligence sharing regime was subject to the same oversight mechanisms as the section 8(4) regime, and none of these oversight bodies had revealed any deliberate abuse by the intelligence services of their powers. Furthermore, no evidence was found to suggest that the intelligence services had – or had attempted – to use the intelligence sharing regime to circumvent RIPA. (b) The submissions of the third parties (i) The Electronic Privacy Information Center (“EPIC”) 407.", "EPIC submitted that the evolving technologies of the NSA and other intelligence agencies had created an almost unlimited ability to access, store and use personal information and private communications globally. However, no US law or regulation prohibited the NSA from conducting warrantless surveillance on foreign citizens abroad. Furthermore, in recent years the US had failed to adopt any meaningful reforms which would have provided adequate privacy and data protection safeguards for non-US persons. (ii) Access Now 408. Access Now contended that while Mutual Legal Assistance Treaties (“MLATs”) offered a transparent and formal process for one State party to request intelligence for another, the operation of secret signals intelligence programmes (for example, the Five Eyes intelligence sharing network of which the United Kingdom, the US, Australia, Canada and New Zealand were members) were not transparent and were prohibited by international human rights standards.", "Such secret programmes were not necessary, since the relevant intelligence could be obtained under MLATs. (iii) Bureau Brandeis 409. The members of the Bureau Brandeis coalition were plaintiffs in a case against the Netherlands. The Dutch authorities had accepted that data was exchanged with foreign intelligence partners (including the US) and that it could not be excluded that they had received information acquired by foreign services using methods that might infringe human rights. The coalition brought proceedings in which they argued that the NSA’s mass data collection programs violated human rights guaranteed by the Convention.", "However, the Hague District Court said that under Dutch law, Dutch intelligence services were allowed to collaborate with the NSA, and the NSA was in turn bound by US law which, in general, did not conflict with the Convention’s privacy requirements. The court further held that because the raw data was shared in bulk, less stringent safeguards were necessary than would apply when the data was examined and used, as there was a difference between receiving data and using it for individual cases. An appeal against this decision was dismissed in March 2017. 410. In their third party intervention before this Court, the coalition argued that the sharing of intelligence should only be permitted if it was accompanied by sufficient safeguards and the foreign authority had a sound legal basis for capturing the material.", "Otherwise, there could be a circumvention of the protection provided by Article 8 of the Convention. In other words, States should not be allowed to obtain material from foreign authorities that they could not lawfully capture themselves. (iv) Center for Democracy and Technology (“CDT”) and Pen American Center (“PEN America”) 411. CDT and PEN America submitted that the interception regimes operated by the NSA would satisfy neither the “in accordance with the law” nor the “proportionality” requirements of Article 8 of the Convention, and these deficiencies tainted the lawfulness of the United Kingdom’s intelligence sharing regime. (v) The International Commission of Jurists (“ICJ”) 412.", "The ICJ referred the Court to Articles 15 and 16 of the Articles of State Responsibility of the International Law Commission (“the ILC Articles”). They contended that, pursuant to Article 15, a Contracting State could be responsible for mass surveillance conducted by a non-Contracting State if they were acting in organised and structured forms of co-operation; and that, pursuant to Article 16, a Contracting State could be responsible for mass surveillance conducted by a non-Contracting State if it contributed to the surveillance programme and had actual or constructive knowledge of the breaches of international human rights obligations inherent in the system. The ICJ further submitted that Contracting States participating in or contributing to a mass surveillance programme were obliged to establish a system of safeguards for the protection of Article 8 rights, and were also under a duty to protect persons within their jurisdiction from violations of Article 8 rights caused by mass surveillance programmes. (vi) Open Society Justice Initiative (“OSJI”) 413. OSJI argued that States should not receive or request data from a third party in a manner that circumvents individuals’ Article 8 rights.", "To ensure that this does not happen, they must put in place safeguards at the point when the material is first gathered, including prior scrutiny of the human rights record and interception laws and practices in the foreign State, and independent, preferably judicial, a posteriori oversight of any sharing arrangements to ensure that the safeguards are in place and enforced. (vii) The Law Society of England and Wales 414. The Law Society previously submitted that the RIPA regime and associated Codes provided no robust or transparent safeguards for legally privileged material. Since the same safeguards applied to privileged material obtained by foreign States and disclosed to the intelligence services of the United Kingdom, the same deficiencies also tainted that regime. (viii) Human Rights Watch (“HRW”) 415.", "Although the present applications focused on the receipt of foreign intelligence from the United States, HRW believed that the network of States with which communications intelligence was shared was vastly larger. For example the “Five Eyes Alliance” comprised the United Kingdom, the United States, Australia, Canada and New Zealand, and there were also thought to be other, more restricted intelligence sharing coalitions (for example, the “Nine Eyes”, adding Denmark, France, the Netherlands and Norway; the “Fourteen Eyes”, adding Germany, Belgium, Italy, Spain and Sweden; and the “Forty-One Eyes”, adding in others in the allied coalition in Afghanistan). (c) The Court’s assessment (i) The scope of the applicants’ complaints 416. This is the first time that the Court has been asked to consider the Convention compliance of an intelligence sharing regime. While the operation of such a scheme might raise a number of different issues under the Convention, in the present case the applicants’ complaints focus on the Article 8 compliance of the regime by which the United Kingdom authorities request and receive intelligence from foreign Governments.", "The applicants do not complain about the transfer of intelligence from the United Kingdom intelligence services to foreign counterparts; nor do they invoke any other Convention Articles. 417. In the Liberty proceedings (in which the IPT was only concerned with the receipt of information from the United States) the applicants submitted that information acquired from the NSA fell into three categories: material which the NSA had provided to the United Kingdom intelligence services unsolicited, and which on its face derived from intercept; communications which the United Kingdom intelligence services had either asked the NSA to intercept, or to make available to them as intercept; and material obtained by the NSA other than by the interception of communications. Although the complaint before the Court is somewhat wider than the one which was before the IPT, the applicants in the first of the joined cases having complained about the receipt of information from any foreign Government, the categories identified by the IPT are nevertheless apposite. As the Government, at the hearing, informed the Court that it was “implausible and rare” for intercept material to be obtained “unsolicited”, the Court will restrict its examination to material falling into the second and third categories.", "418. Material falling within the second category can be divided into two sub-categories: communications which the respondent State has asked a foreign intelligence service to intercept; and communications already intercepted by a foreign intelligence service, which are conveyed to the authorities of the respondent State upon their request. The Court will first deal with these two sub-categories together, before proceeding to consider the third category separately. (ii) The nature of the interference 419. The Court has already found that the applicants can claim to be victims of the alleged violation of Article 8 of the Convention occasioned by the existence of an intelligence sharing regime.", "However, it is important to clarify at the outset the nature of the interference under consideration. 420. Although the impugned regime concerns intercepted communications, the interference under consideration in this case does not lie in the interception itself, which did not, in any event, occur within the United Kingdom’s jurisdiction, and was not attributable to that State under international law. As the communications are being intercepted by foreign intelligence agencies, their interception could only engage the responsibility of the respondent State if it was exercising authority or control over those agencies (see, for example, Jaloud v. the Netherlands [GC], no. 47708/08, §§ 139 and 151 ECHR 2014 and Al-Skeini and Others v. the United Kingdom [GC], no.", "55721/07, §§ 130-139, ECHR 2011). Even when the United Kingdom authorities request the interception of communications (rather than simply the conveyance of the product of intercept), the interception would appear to take place under the full control of the foreign intelligence agencies. Some of the third parties have invoked the ILC Articles, but these would only be relevant if the foreign intelligence agencies were placed at the disposal of the respondent State and were acting in exercise of elements of the governmental authority of the respondent State (Article 6); if the respondent State aided or assisted the foreign intelligence agencies in intercepting the communications where that amounted to an internationally wrongful act for the State responsible for the agencies, the United Kingdom was aware of the circumstances of the internationally wrongful act, and the act would have been internationally wrongful if committed by the United Kingdom (Article 16); or if the respondent State exercised direction or control over the foreign Government (Article 17). There is no suggestion that this is the case. 421.", "Consequently, the interference lies in the receipt of the intercepted material and its subsequent storage, examination and use by the intelligence services of the respondent State. (iii) The applicable test 422. As with any regime which provides for the acquisition of surveillance material, the regime for the obtaining of such material from foreign Governments must be “in accordance with the law”; in other words, it must have some basis in domestic law, it must be accessible to the person concerned and it must be foreseeable as to its effects (see Roman Zakharov, cited above, § 228). Furthermore, it must be proportionate to the legitimate aim pursued, and there must exist adequate and effective safeguards against abuse. In particular, the procedures for supervising the ordering and implementation of the measures in question must be such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232).", "423. The parties dispute whether the six minimum requirements commonly applied in cases concerning the interception of communications (namely, the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their communications intercepted; a limit on the duration of interception; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which intercepted data may or must be erased or destroyed – see paragraph 307 above) should apply in the present case. It is true that the interference in this case is not occasioned by the interception of communications by the respondent State. However, as the material obtained is nevertheless the product of intercept, those requirements which relate to its storage, examination, use, onward dissemination, erasure and destruction must be present. Indeed, as the Venice Commission noted, as States could use intelligence sharing to circumvent stronger domestic surveillance procedures and/or any legal limits which their agencies might be subject to as regards domestic intelligence operations, a suitable safeguard would be to provide that the bulk material transferred could only be searched if all the material requirements of a national search were fulfilled and this was duly authorised in the same way as a search of bulk material obtained by the signals intelligence agency using its own techniques (see paragraph 216 above).", "424. Furthermore, while the first and second of the six requirements may not be of direct relevance where the respondent State is not carrying out the interception itself, the Court is nevertheless mindful of the fact that if Contracting States were to enjoy an unfettered discretion to request either the interception of communications or the conveyance of intercepted communications from non-Contracting States, they could easily circumvent their obligations under the Convention. Consequently, the circumstances in which intercept material can be requested from foreign intelligence services must also be set out in domestic law in order to avoid abuses of power. While the circumstances in which such a request can be made may not be identical to the circumstances in which the State may carry out interception itself (since, if a State’s own intelligence services could lawfully intercept communications themselves, they would only request this material from foreign intelligence services if it is not technically feasible for them to do so), they must nevertheless be circumscribed sufficiently to prevent – insofar as possible – States from using this power to circumvent either domestic law or their Convention obligations. (iv) Application of the test to material falling into the second category (α) Accessibility 425.", "The statutory framework which permits the United Kingdom intelligence services to request intercepted material from foreign intelligence agencies is not contained in RIPA. The British-US Communication Intelligence Agreement of 5 March 1946 specifically permits the exchange of material between the United States and the United Kingdom. More generally, the SSA (see paragraphs 98-99 above) and the ISA (see paragraphs 100-103 above) set out the function of the intelligence services and require that there be arrangements for ensuring that no information is obtained by them except so far as necessary for the proper discharge of their functions; and that no information is disclosed by them except so far as necessary for that purpose or for the purpose of any criminal proceedings. 426. Details of the internal arrangements referred to in the SSA and ISA were disclosed during the Liberty proceedings (the 9 October disclosure – see paragraphs 26-30 above) and those details have now been incorporated into the most recent IC Code (see paragraph 109 above).", "427. Consequently, the Court considers that there is now a basis in law for the requesting of intelligence from foreign intelligence agencies, and that that law is sufficiently accessible. Furthermore, the regime clearly pursues several legitimate aims, including the interests of national security, public safety and the economic well-being of the country, the prevention of disorder or crime, and the protection of the rights and freedoms of others. It therefore falls to the Court to assess the foreseeability and necessity of the regime. As already indicated, it will do so by examining whether the law meets the following requirements by indicating: the circumstances in which intercept material can be requested; the procedure to be followed for examining, using and storing the material obtained; the precautions to be taken when communicating the material obtained to other parties; and the circumstances in which the material obtained must be erased or destroyed (see the third to sixth safeguards referred to in paragraph 307 above).", "(β) The circumstances in which intercept material can be requested 428. Chapter 12 of the IC Code (see paragraph 109 above) states that, save in exceptional circumstances, the intelligence services may only make a request to a foreign government for unanalysed intercepted communications and/or associated communications data if an interception warrant under RIPA has already been issued by the Secretary of State, the assistance of the foreign government is necessary to obtain the particular communications because they cannot be obtained under the existing warrant, and it is necessary and proportionate for the intercepting agency to obtain those communications. A RIPA interception warrant means either a section 8(1) warrant in relation to the subject at issue; a section 8(4) warrant and an accompanying certificate which includes one or more “descriptions of intercepted material” covering the subject’s communications; or, where the subject is known to be within the British Islands, a section 8(4) warrant and an accompanying certificate which includes one or more “descriptions of intercepted material” covering his or her communications, together with an appropriate section 16(3) modification. 429. Where exceptional circumstances exist, a request for communications may be made in the absence of a relevant RIPA interception warrant only if it does not amount to a deliberate circumvention of RIPA or otherwise frustrate its objectives (for example, because it is not technically feasible to obtain the communications via RIPA interception), and it is necessary and proportionate for the intercepting agency to obtain those communications.", "In such a case the request must be considered and decided on by the Secretary of State personally, and, pursuant to the revised IC Code, notified to the Interception of Communications Commissioner (see paragraph 109 above). According to information disclosed during the Liberty proceedings, and confirmed in the Government’s submissions in the present case, no request for intercept material has ever been made in the absence of an existing RIPA warrant. 430. In light of the above considerations, the Court considers that the circumstances in which the respondent State may request interception or the conveyance of intercepted material are sufficiently circumscribed in domestic law to prevent the State from using this power to circumvent either domestic law or its Convention obligations. (γ) Procedure to be followed for storing, accessing, examining and using the material obtained 431.", "By virtue of section 19(2) of the Counter-Terrorism Act 2008 (“CTA” – see paragraph 103), information obtained by any of the intelligence services in connection with the exercise of any of their functions may be used in connection with the exercise of any of their other functions. However, the intelligence services are data controllers for the purposes of the Data Protection Act 1998 and are required to comply with the data protection principles in Part 1 of Schedule 1 to the DPA. While compliance with these principles is subject to exemption by ministerial certificate, they cannot be exempted from the obligation to comply with the fifth and seventh data protection principles, which provide that personal data processed for any purpose shall not be kept for longer than is necessary for that purpose; and appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. A member of the intelligence services commits an offence under section 1(1) of the OSA (see paragraph 107 above) if he discloses, without lawful authority, any information relating to security or intelligence which is, or has been, in his possession by virtue of his position. 432.", "More specifically, Chapter 12 of the IC Code makes it clear that where intercepted communications content or communications data are obtained by the intelligence services from a foreign government in circumstances where the material identifies itself as the product of an interception, the communications content and communications data must be subject to the same internal rules and safeguards that apply to the same categories of content or data when they are obtained directly by the intelligence services as a result of interception under RIPA (see paragraph 109 above). This means that the safeguards in section 15 and 16 of RIPA, as supplemented by Chapter 7 of the IC Code, apply equally to intercepted communications and communications data obtained from foreign governments. 433. The Court has already given careful consideration to the safeguards in section 15 and 16 of RIPA, as supplemented by Chapter 7 of the IC Code, in its assessment of the section 8(4) regime (see paragraphs 361-363 above). In brief, material obtained from foreign intelligence agencies must be stored securely and must not be accessible to persons without the required level of security clearance.", "Access by the analyst is limited to a defined period of time, and if renewed, the record must be updated giving reasons for renewal. Before being able to examine material obtained from foreign intelligence agencies, specially authorised and vetted analysts must make a record of why access to the material is necessary for one of the statutory purposes set out in section 5(3) of RIPA, and proportionate. They cannot select material for examination using criteria that refer to the communications of individuals known currently to be in the British Islands (unless there is a warrant with a section 16(3) modification, or if, in the absence of a warrant, the Secretary of State has personally considered and approved the examination of those communications by reference to such factors). 434. Although the IPT had, in the Liberty proceedings, expressed concern that the section 16(2)(a) and (b) safeguards (which prevent intercepted material being selected for examination by reference to an individual known to be in the British Islands) did not appear to apply to material obtained from foreign governments in the absence of a warrant, the IC Code has since been amended to address this concern.", "Paragraph 12.5 now expressly provides that if a request made in the absence of a warrant is approved by the Secretary of State other than in relation to specific selectors, any communications obtained must not be examined by the intelligence services according to any factors as are mentioned in section 16(2)(a) and (b) of RIPA unless the Secretary of State has personally considered and approved the examination of those communications by reference to such factors (see paragraph 110 above). 435. In light of the foregoing, the Court would accept that the provisions relating to the storing, accessing, examining and using such material are sufficiently clear. (δ) Procedure to be followed for communicating the material obtained to other parties 436. As with material intercepted directly pursuant to a RIPA warrant (see paragraphs 365-367 above), disclosure of material obtained from foreign intelligence agencies must be limited to the minimum necessary for the “authorised purposes” mentioned in section 5(3) of RIPA.", "In addition, disclosure to persons who have not been appropriately vetted is prohibited and material may only be disclosed to a person whose duties, which must relate to one of the authorised purposes, are such that he or she needs to know about the material to carry out those duties. In the same way, only so much of the intercepted material may be disclosed as the recipient needs. 437. Section 19(3), (4) and (5) of the CTA further provide that information obtained by MI5 and MI6 for the purposes of any of their functions may be disclosed by them for the purpose of the proper discharge of their functions; in the interests of national security; for the purpose of the prevention or detection of serious crime; or for the purpose of any criminal proceedings. Information obtained by GCHQ may be disclosed by it for the purpose of the proper discharge of its functions or for the purpose of any criminal proceedings (see paragraphs 104-105 above).", "438. Moreover, a member of the intelligence services commits an offence under section 1(1) of the OSA if without lawful authority he discloses any information, document or other article relating to security or intelligence which is, or has been, in his possession by virtue of his position as a member of any of those services (see paragraph 107 above). 439. In light of the foregoing, the Court would also accept that the provisions relating to the procedure to be followed for communicating the material obtained to other parties are sufficiently clear. (ε) The circumstances in which the material obtained must be erased or destroyed 440.", "Section 15(3) of RIPA and paragraph 7.8 of the IC Code require that every copy (together with any extracts and summaries) be destroyed securely as soon as retention is no longer necessary for any of the section 5(3) purposes (see paragraphs 74 and 90 above). (ζ) Supervision and remedies 441. In nearly every case either a section 8(1) or 8(4) warrant will be in place, meaning that the Secretary of State (and, following the coming into force of IPA 2016, a judicial commissioner) will have authorised the interception. In exceptional circumstances, when a warrant is not in place, the Secretary of State must personally consider and decide upon the request, and the Interception of Communications Commissioner (now the Investigatory Powers Commissioner) must be notified. Therefore, in every case where a request has been made the Secretary of State will have deemed the interception to be necessary and proportionate (in the Convention sense).", "442. Further oversight of the intelligence sharing regime is provided by the ISC, a cross-party Committee of Members of Parliament which exercises wide powers. Following an extensive review, on 13 July 2013 the ISC published a report in which it concluded that allegations “that GCHQ circumvented UK law by using the NSA’s PRISM programme to access the content of private communications” were unfounded as GCHQ had complied with its statutory duties contained in the ISA (see paragraphs 148‑150 above). 443. Additional oversight was afforded by the Interception of Communications Commissioner, who was independent from both Government and the intelligence services.", "He was under a duty by section 58(4) of RIPA to make an annual report to the Prime Minister regarding the carrying out of his functions, which had to be laid before Parliament. As already noted, the Interception of Communications Commissioner has now been replaced by the Investigatory Powers Commissioner. On 17 October 2017, in a reply to a question posed by, inter alia, Privacy International, the new Commissioner confirmed that, like his predecessor, he had the power to oversee the Government’s intelligence sharing agreements, and that he intended to use those powers actively to ensure effective oversight. 444. A final level of oversight is provided by the IPT, and its effectiveness was demonstrated in the Liberty proceedings by the fact that it was able to ensure disclosure of certain arrangements which have now been incorporated into the IC Code (see paragraph 109 above).", "(η) Proportionality 445. The Court has always been acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights (see, for example, Lawless v. Ireland (no. 3), 1 July 1961, §§ 28–30, Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, Series A no. 25; and Öcalan v. Turkey [GC], no.", "46221/99, § 179, ECHR 2005‑IV) and in recent years it has expressly acknowledged – in response to complaints invoking a wide range of Convention Articles – the very real threat that Contracting States currently face on account of international terrorism (see, for example, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996‑V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 181, ECHR 2009; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010; Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts); and Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012).", "446. Faced with such a threat, the Court has considered it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts (see Othman, cited above, § 183). Due to the nature of global terrorism, and in particular the complexity of global terror networks, the Court accepts that taking such a stand – and thus preventing the perpetration of violent acts endangering the lives of innocent people – requires a flow of information between the security services of many countries in all parts of the world. As, in the present case, this “information flow” was embedded into a legislative context providing considerable safeguards against abuse, the Court would accept that the resulting interference was kept to that which was “necessary in a democratic society”. (θ) Conclusions 447.", "In light of the foregoing considerations, the Court considers that the domestic law, together with the clarifications brought by the amendment of the IC Code, indicate with sufficient clarity the procedure for requesting either interception or the conveyance of intercept material from foreign intelligence agencies. In this regard, it observes that the high threshold recommended by the Venice Commission – namely, that the material transferred should only be able to be searched if all the material requirements of a national search were fulfilled and this was duly authorised in the same way as a search of bulk material obtained by the signals intelligence agency using its own techniques – is met by the respondent State’s regime. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the regime. On the contrary, following an investigation the ISC found no evidence whatsoever of abuse. 448.", "There has accordingly been no violation of Article 8 of the Convention. (v) Application of the test to material falling into the third category 449. The third category of material identified at paragraph 417 above is material obtained by foreign intelligence agencies other than by the interception of communications. However, as the applicants have not specified the kind of material foreign intelligence agencies might obtain by methods other than interception they have not demonstrated that its acquisition would interfere with their Article 8 rights. As such, the Court considers that there is no basis upon which it could find a violation of Article 8 of the Convention.", "C. The Chapter II regime 450. The applicants in the second of the joined cases complained that the regime for the acquisition of communications data under Chapter II of RIPA was incompatible with their rights under Article 8 of the Convention. 1. Admissibility 451. In both their application to the Court and their initial observations, the applicants in the second of the joined cases incorrectly referred to the Chapter II regime as a regime for the interception of communications data.", "The Court observes, however, that it is not an interception regime, but rather permits certain public authorities to acquire communications data from Communications Service Providers (“CSPs”). In view of the “fundamental legal misunderstanding” upon which the complaint was originally founded, the Government submitted that the applicants have put forward no factual basis whatsoever for concluding that their communications were acquired in this way, and that they did not contend that they had been affected, either directly or indirectly, by the regime. The Government further argued that neither of the two conditions identified by the Court in Roman Zakharov (cited above, § 171) were satisfied in respect of the Chapter II regime: the applicants did not belong to a group “targeted” by the contested legislation, and they had available to them an effective domestic remedy. Consequently, they could not claim to be victims of the alleged violation within the meaning of Article 34 of the Convention. 452.", "The applicants, on the other hand, submitted that they were entitled to bring the present complaint since they could possibly have been affected by the impugned legislation and no effective remedy was available at the domestic level. 453. In assessing victim status the Court is predominantly concerned with whether an effective remedy existed which permitted a person who suspected that he or she was subject to secret surveillance to challenge that surveillance (see Roman Zakharov, cited above, § 171). In the present case, although the Court accepted that there existed special circumstances absolving the applicants from the requirement that they first bring their complaints to the IPT (see paragraph 268 above), it nevertheless found that the IPT was an effective remedy, available in theory and practice, which was capable of offering redress to applicants complaining of both specific incidences of surveillance and the general Convention compliance of surveillance regimes (see paragraphs 250-266 above). Consequently, the applicants can only claim to be “victims” on account of the mere existence of the Chapter II regime if they are able to show that, due to their personal situation, they were potentially at risk of having their communications data obtained by the United Kingdom authorities through a request to a CSP (see Roman Zakharov, cited above, § 171).", "454. In this regard, the Court notes that the Chapter II regime is not a regime for the bulk acquisition of communications data; rather, as stated previously, it permits public authorities to request specific communications data. Nevertheless, a large number of public authorities are entitled to make such requests, and the grounds on which a request might be made are relatively wide. Given that the applicants in the second of the joined cases are investigative journalists who have reported on issues such as CIA torture, counterterrorism, drone warfare, and the Iraq war logs, the Court would accept that they were potentially at risk of having their communications obtained by the United Kingdom authorities either directly, through a request to a CSP for their communications data, or indirectly, through a request to a CSP for the communications data of a person or organisation they had been in contact with. 455.", "The Court would therefore accept that they were “victims” within the meaning of Article 34 of the Convention. As this complaint is not inadmissible on any other grounds, it must be declared admissible. 2. Merits (a) The parties’ submissions (i) The applicants 456. The applicants submitted that Chapter II of RIPA permitted the obtaining of communications data in a wide range of ill-defined circumstances, without proper safeguards.", "In particular, they submitted that the legal framework and attendant safeguards were informed by a fundamental but erroneous premise; namely, that the obtaining of communications data was necessarily less intrusive than the interception of content. In particular, the applicants complained that in most cases authorisation for the acquisition of communications data was provided by a designated person, who was not sufficiently independent of the executive or even of the agency requesting the disclosure. 457. Furthermore, they complained that Chapter II provided few limitations as to the basis on which communications data could be acquired, since section 22 of RIPA allowed a designated person to authorise the acquisition of communications data on a broad range of grounds, provided that he or she believed it “necessary”. Finally, they argued that there were very few safeguards in respect of the handling and exploitation of communications data.", "(ii) The Government 458. The Government pointed out that as the Chapter II regime was a targeted regime, there was nothing “unintentional” about its operation. On the contrary, the acquisition of communications data under it would always be intentional. It was therefore to be distinguished from regimes for the bulk interception or bulk acquisition of data. 459.", "The Government further argued that the amended Acquisition and Disclosure of Communications Data Code of Practice (“the ACD Code”) provided adequate safeguards in respect of the retention of communications data acquired under the Chapter II regime, and that the Interception of Communications Commissioner provided an important degree of oversight of the operation of the regime. (b) The Court’s assessment (i) Existing case-law on the acquisition of communications data 460. To date, the Court has only twice been called on to consider the Convention compliance of a regime for the acquisition by a public authority of communications data from a CSP: in Malone and, more recently, in Ben Faiza (both cited above). In Malone, the authorities had obtained the numbers dialled on a particular telephone and the time and duration of the calls from the Post Office, which, as the supplier of the telephone service, had acquired this data legitimately by a process known as “metering”. While the Court accepted that the use of the data could give rise to an issue under Article 8 of the Convention, it considered that “by its nature” it had to be distinguished from the interception of communications, which was “undesirable and illegitimate in a democratic society unless justified” (see Malone, cited above, § 84).", "However, it was not necessary for the Court to consider this issue in any further detail, since, in the absence of any legal framework governing the acquisition of records from the Post Office, the Court found that the interference had no basis in domestic law (see Malone, cited above, § 87). 461. While Malone is now thirty-four years old, the Ben Faiza judgment was delivered in February 2018. In that case the Court was considering an order issued to a mobile telephone operator to provide lists of incoming and outgoing calls on four mobile telephones, together with the list of cell towers “pinged” by those telephones. Pursuant to the domestic law in question (Article 77-1-1 of the Criminal Procedure Code), prosecutors or investigators could, on the authorisation of the former, require establishments, organisations, persons, institutions and administrations to provide them with documents in their possession which were required for the purposes of the investigation.", "The Court accepted that the measure was “in accordance with the law”, and that the law provided adequate safeguards against arbitrariness. In respect of those safeguards, the Court observed that a request under Article 77-1-1 was subject to the prior authorisation of the public prosecutor’s office; this obligation could not be derogated from under penalty of nullity of the act; and the legality of such a measure could be reviewed in subsequent criminal proceedings against the person concerned and, if found to be unlawful, the criminal courts could exclude the evidence so obtained (Ben Faiza, cited above, §§ 72-73). 462. In adopting this approach, the Court distinguished between methods of investigation which made it possible to identify the past geographical position of a person and those which made it possible to geolocate him or her in real time, indicating that the latter was more likely to violate the right to respect for private life. Consequently, in the view of the Court, the transmission to a judicial authority of existing data held by a public or private body was to be distinguished from the establishment of a surveillance system, such as the ongoing monitoring of a telephone line or the placing of a tracking device on a vehicle (Ben Faiza, cited above, § 74; see also paragraph 350 above).", "463. The Court of Justice of the European Union has also addressed this issue. In Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Settinger and Others (Cases C-293/12 and C-594/12), the CJEU considered the validity of the Data Retention Directive, and in Secretary of State for the Home Department v. Watson and Others (C-698/15), the validity of domestic legislation containing the same provisions as that directive (see paragraphs 224-234 above). While its focus was on the retention of data by CSPs, it also considered the question of access to retained data by the national authorities. In doing so, it indicated that access should be limited to what was strictly necessary for the objective pursued and, where that objective was fighting crime, it should be restricted to fighting serious crime.", "It further suggested that access should be subject to prior review by a court or independent administrative authority, and that there should be a requirement that the data concerned be retained within the European Union. In light of the CJEU’s findings, Liberty sought to challenge Part 4 of the IPA, which included a power to issue “retention notices” to telecommunications operators requiring the retention of data. In response, the Government conceded that Part 4 was incompatible with fundamental rights in EU law since access to retained data was not limited to the purpose of combating “serious crime”; and access to retained data was not subject to prior review by a court or an independent administrative body. The High Court held that the legislation had to be amended by 1 November 2018 (see paragraph 196 above). (ii) The approach to be taken in the present case 464.", "The appropriate test in the present case will therefore be whether the Chapter II regime was in accordance with the law; whether it pursued a legitimate aim; and whether it was necessary in a democratic society, having particular regard to the question of whether it provided adequate safeguards against arbitrariness. (iii) Examination of the Chapter II regime 465. No interference can be considered to be “in accordance with law” unless the decision occasioning it complies with the relevant domestic law. It is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law: the national authorities are, in the nature of things, particularly qualified to settle issues arising in this connection. The Court cannot question the national courts’ interpretation, except in the event of flagrant non-observance or arbitrariness in the application of the domestic legislation in question (see Mustafa Sezgin Tanrıkulu, cited above, § 53; see also, mutatis mutandis, Weber and Saravia, cited above, § 90).", "466. The Court observes that the Chapter II regime has a clear basis in both section 22 of RIPA and the ACD Code. However, as a Member State of the European Union, the Community legal order is integrated into that of the United Kingdom and, where there is a conflict between domestic and law and EU law, the latter has primacy. Consequently, the Government have conceded that Part 4 of the IPA is incompatible with EU law because access to retained data was not limited to the purpose of combating “serious crime”; and access to retained data was not subject to prior review by a court or an independent administrative body. Following this concession, the High Court ordered that the relevant provisions of the IPA should be amended by 1 November 2018 (see paragraph 196 above).", "467. It is therefore clear that domestic law, as interpreted by the domestic authorities in light of the recent judgments of the CJEU, requires that any regime permitting the authorities to access data retained by CSPs limits access to the purpose of combating “serious crime”, and that access be subject to prior review by a court or independent administrative body. As the Chapter II regime permits access to retained data for the purpose of combating crime (rather than “serious crime”) and, save for where access is sought for the purpose of determining a journalist’s source, it is not subject to prior review by a court or independent administrative body, it cannot be in accordance with the law within the meaning of Article 8 of the Convention. 468. Accordingly, the Court finds that there has been a violation of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 469. The applicants in the third of the joined cases complained under Article 10 of the Convention about the section 8(4) regime and the intelligence sharing regime, arguing, in particular, that the protection afforded by Article 10 was of critical importance to them as NGOs involved in matters of public interest, who were exercising a role of public watchdog of similar importance to that of the press; and the applicants in the second of the joined cases, being a journalist and newsgathering organisation, complained under Article 10 of the Convention about both the section 8(4) regime and the Chapter II regime. 470. Article 10 of the Convention provides as follows: “1.", "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 1.", "The applicants in the third of the joined cases 471. The Court has already found that as a general rule the IPT has shown itself to be a remedy, available in theory and practice, which is capable of offering redress to applicants complaining about both specific incidences of surveillance and the general Convention compliance of a surveillance regime (see paragraphs 250-266 above). The Court has, however, accepted that there existed special circumstances absolving the applicants in the first and second of the joined cases from the requirement that they exhaust this remedy (see paragraph 268 above), but as the applicants in the third of the joined cases challenged the Convention compliance of both the section 8(4) regime and the intelligence sharing regime before the IPT, they cannot benefit from the “absolution” afforded to the other applicants. Therefore, as they did not complain before the IPT that the intelligence sharing regime was incompatible with Article 10 of the Convention, this complaint must be declared inadmissible for failure to domestic remedies within the meaning of Article 35 § 1 of the Convention. 472.", "Furthermore, although these applicants did complain before the IPT that the section 8(4) regime was not compatible with Article 10, in doing so they primarily relied on the same arguments invoked in respect of their Article 8 complaint. Insofar as they sought to argue that Article 10 could apply to their investigatory activities as NGOs, this argument was only raised on 17 November 2014 (the first and second open hearings having taken place in July and October 2014). As the IPT considered that this argument could have been raised at any time, in its judgment it had been raised far too late to be incorporated into the ambit of the Liberty proceedings (see paragraph 47 above). 473. Therefore, with regard to the Article 8(4) complaint, the Court finds that insofar as the applicants in the third of the joined cases seek to rely on the special protection afforded by Article 10 of the Convention to journalists, they have not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.", "Their complaints under this head must also be declared inadmissible. 474. Finally, the Court considers that the more general Article 10 complaint – which the applicants raised before the IPT in good time – gives rise to no separate argument over and above that arising out of Article 8 of the Convention. It is not, therefore, necessary to examine this complaint. 2.", "The applicants in the second of the joined cases 475. As the Court has acknowledged that the applicants in the second of the joined cases were, exceptionally, absolved from the requirement that they first bring their complaints to the IPT, they cannot be said to have failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. As their complaints are not inadmissible on any other ground, they must, therefore, be declared admissible. 476. Moreover, the applicants in the second of the joined cases are a journalist and a newsgathering organisation, who complain about the interference with confidential journalistic material occasioned by the operation of both the section 8(4) regime and the Chapter II regime.", "As such, their complaints raise separate issues to those raised under Article 8 of the Convention, which will be examined below. B. Merits 1. The parties’ submissions (a) The applicants 477. The applicants argued that as freedom of the press constituted one of the essential foundations of a democratic society, and the protection of journalistic sources was one of the cornerstones of freedom of the press, Article 10 of the Convention imposed additional and more exacting requirements where an interference gave rise to a significant risk of revealing journalistic sources or confidential journalistic material.", "In this regard, they submitted that surveillance measures which ran a significant risk of identifying journalistic source material had to be justified by an “overriding public interest” (Sanoma Uitgevers B.V., cited above, §§ 51 and 90, 14 September 2010 and Goodwin v. the United Kingdom, 27 March 1996, § 39 Reports of Judgments and Decisions 1996‑II); and authorisation could only be granted by a judge or other independent adjudicative body. 478. The applicants submitted that as journalists involved in matters of public interest, who were exercising a role of public watchdog, the protection afforded by Article 10 was of critical importance to them. 479. In respect of the section 8(4) regime, the applicants argued that the interception of material gathered through bulk surveillance was not attended by adequate safeguards.", "First of all, the definition of “confidential journalistic material” in the IC Code of Practice was too narrow, as it was limited to material acquired for the purpose of journalism and held subject to an undertaking to hold it in confidence. This definition was inconsistent with the Court’s broader definition (for example, in Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 86, 22 November 2012). Secondly, the regime did not comply with the strict requirements of Article 10 where surveillance measures might reveal journalistic source material (in the applicants’ submissions, the existence of an “overriding public interest” and judicial – or at least independent – authorisation). 480.", "With regard to the Chapter II regime, the applicants complained that the ACD Code failed to recognise that communications data could be privileged, and that the obtaining of communications data which constituted confidential journalistic material was as intrusive as obtaining content, since a single piece of communications data could reveal the identity of a journalist’s source, and when aggregated and subjected to modern data‑mining technology, it could reveal an enormous range of (journalistically privileged) information. The applicants further complained that in most cases authorisation for the acquisition of communications data was provided by a designated person, who was not sufficiently independent of the executive, or even of the agency requesting the disclosure. While an additional safeguard now existed requiring that applications made in order to identify a journalist’s source be authorised by a judge, they did not apply where the identification of the source was incidental rather than intended. (b) The Government 481. In the Government’s submissions, prior authorisation was the only respect in which the applicants contended that the position regarding the “in accordance with the law” test might differ under Article 10 from that under Article 8, and in respect of which they asserted that their identity as journalists might be material to the analysis.", "However, there was no authority in the Court’s case-law for the proposition that prior judicial (or independent) authorisation was required for a strategic monitoring regime by virtue of the fact that some journalistic material might be intercepted in the course of that regime’s operation. On the contrary, the Court had drawn a sharp and important distinction between the strategic monitoring of communications and/or communications data, which might inadvertently “sweep up” some journalistic material, and measures that targeted journalistic material, particularly for the purposes of identifying sources, where prior authorisation would be required. 482. With regard to Chapter II of RIPA, the Government pointed out that pursuant to the amended Acquisition and Disclosure of Communications Data Code of Practice (“the ACD Code”), where the identification of a journalist’s source was intended, judicial authorisation was required. As there was nothing “unintentional” about the operation of the Chapter II regime, the acquisition of communications data under it would always be intentional and further safeguards were not required for the unintentional acquisition of material disclosing a journalist’s source.", "483. The Government further argued that the ACD Code provided for the protection of confidential material, including journalistic material. Such material should only be retained where necessary and proportionate for one of the authorised purposes in section 15(4) of RIPA; it must be destroyed securely when its retention was no longer needed for those purposes; and, if retained, there had to be adequate information management systems in place to ensure that retention remained necessary and proportionate. Where it was retained or disseminated to an outside body, reasonable steps had to be taken to mark it as confidential, and where any doubt existed, legal advice had to be sought about its dissemination. Finally, any case where confidential material was retained had to be notified to the Commissioner as soon as reasonably practical and the material had to be made available to the Commissioner on request.", "2. The submissions of the third parties (a) The Helsinki Foundation for Human Rights 484. The Helsinki Foundation submitted that the protection of journalistic sources was undermined not only by the surveillance of the content of journalists’ communications, but also by the surveillance of related metadata which could, by itself, allow for the identification of sources and informants. It was especially problematic that confidential information could be acquired without the journalists’ knowledge or control, thereby depriving them of their right to invoke confidentiality, and the ability of their sources to rely on guarantees of confidentiality. (b) The National Union of Journalists (“NUJ”) and the International Federation of Journalists (“IFJ”) 485.", "The NUJ and the IFJ submitted that the confidentiality of sources was indispensable for press freedom. They also expressed concern about the possible sharing of data retained by the United Kingdom with other countries. If confidential journalistic material were to be shared with a country which could not be trusted to handle it securely, it could end up in the hands of people who would harm the journalist or his or her source. In the interveners’ view, the safeguards in the updated IC and ACD Codes of Practice were not adequate, especially where the journalist or the identification of his or her source was not the target of the surveillance measure. (c) The Media Lawyers’ Association (“MLA”) 486.", "The MLA expressed deep concern that domestic law was moving away from the strong presumption that journalistic sources would be afforded special legal protection, since surveillance regimes allowed the authorities to intercept journalists’ communications without the need for prior judicial authorisation. Since the protection of journalists’ sources was one of the core components of Article 10, more robust protection was required. 3. The Court’s assessment (a) General principles 487. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance.", "The protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public about matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information may be adversely affected (see, inter alia, Sanoma Uitgevers B.V., cited above, § 50; Weber and Saravia, cited above, § 143; Goodwin, cited above, § 39; and Roemen and Schmit v. Luxembourg, no. 51772/99, § 46, ECHR 2003-IV). 488.", "The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest (Sanoma Uitgevers B.V., cited above, § 51; Goodwin, cited above, § 39; Roemen and Schmit, cited above, § 46; and Voskuil v. the Netherlands, no. 64752/01, § 65, 22 November 2007). 489. The Court has recognised that there is “a fundamental difference” between the authorities ordering a journalist to reveal the identity of his or her sources, and the authorities carrying out searches at a journalist’s home and workplace with a view to uncovering his or her sources (compare Goodwin, cited above, with Roemen and Schmit, cited above, § 57).", "The Court considered that the latter, even if unproductive, constituted a more drastic measure than an order to divulge the source’s identity, since investigators who raid a journalist’s workplace have access to all the documentation held by the journalist (Roemen and Schmit, cited above, § 57). However, the Court has also drawn a distinction between searches carried out on journalists’ homes and workplaces “with a view to uncovering their sources”, and searches carried out for other reasons, such as the obtaining of evidence of an offence committed by a person other than in his or her capacity as a journalist (Roemen and Schmit, cited above, § 52). Similarly, in Weber and Saravia, the only case in which the Court has considered, in abstracto, the Article 10 compliance of a secret surveillance regime on account of the potential for interference with confidential journalistic material, it considered it decisive that the surveillance measures were not aimed at monitoring journalists or uncovering journalistic sources. As such, it found that the interference with freedom of expression could not be characterised as particularly serious (Weber and Saravia, cited above, § 151). (b) The application of the general principles to the present case (i) The section 8(4) regime 490.", "With regard to the question of victim status, the Court recalls that in Weber and Saravia it expressly recognised that the impugned surveillance regime had interfered with the first applicant’s freedom of expression as a journalist (Weber and Saravia, cited above, §§ 143-145). In the present case, the applicants in the second of the joined cases are journalists and can similarly claim to be “victims” of an interference with their Article 10 rights by virtue of the operation of the section 8(4) regime. 491. For the reasons set out in respect of the Article 8 complaint, the Court considers that – save for its concerns about the oversight of the selection process and the safeguards applicable to the selection of related communications data (see paragraph 387 above) – the section 8(4) regime was in accordance with the law (see paragraphs 387-388 above). Furthermore, it pursued the legitimate aims of protecting interests of national security, territorial integrity and public safety, and preventing disorder and crime.", "492. With regard to “necessity”, the Court reiterates that, having regard to the importance of the protection of journalistic sources for the freedom of the press in a democratic society, an interference could not be compatible with Article 10 of the Convention unless it was justified by an overriding requirement in the public interest (Weber and Saravia, cited above, § 149). In this regard, it notes that the surveillance measures under the section 8(4) regime – like those under the G10 Act which were considered in Weber and Saravia – are not aimed at monitoring journalists or uncovering journalistic sources. Generally the authorities would only know when examining the intercepted communications if a journalist’s communications had been intercepted. Consequently, it confirms that the interception of such communications could not, by itself, be characterised as a particularly serious interference with freedom of expression (Weber and Saravia, cited above, § 151).", "However, the interference will be greater should these communications be selected for examination and, in the Court’s view, will only be “justified by an overriding requirement in the public interest” if accompanied by sufficient safeguards relating both to the circumstances in which they may be selected intentionally for examination, and to the protection of confidentiality where they have been selected, either intentionally or otherwise, for examination. 493. In this regard, paragraphs 4.1 – 4.8 of the IC Code require special consideration to be given to the interception of communications that involve confidential journalistic material and confidential personal information (see paragraph 90 above). However, these provisions appear to relate solely to the decision to issue an interception warrant. Therefore, while they might provide adequate safeguards in respect of a targeted warrant under section 8(1) of RIPA, they do not appear to have any meaning in relation to a bulk interception regime.", "Furthermore, the Court has already criticised the lack of transparency and oversight of the criteria for searching and selecting communications for examination (see paragraphs 339, 340, 345 and 387 above). In the Article 10 context, it is of particular concern that there are no requirements – at least, no “above the waterline” requirements – either circumscribing the intelligence services’ power to search for confidential journalistic or other material (for example, by using a journalist’s email address as a selector), or requiring analysts, in selecting material for examination, to give any particular consideration to whether such material is or may be involved. Consequently, it would appear that analysts could search and examine without restriction both the content and the related communications data of these intercepted communications. 494. Safeguards do exist in respect of the storing of confidential material once identified.", "For example, paragraph 4.29 of the IC Code (see paragraph 90 above) provides that such material should only be retained where it is necessary and proportionate for one of the authorised purposes in section 15(4) of RIPA, and it must be destroyed securely when it is no longer needed for one of these purposes. Furthermore, according to paragraph 4.30, if it is retained or disseminated to an outside body, reasonable steps should be taken to mark the information as confidential; and paragraph 4.31 requires that the Interception of Communications Commissioner be notified of the retention of such material as soon as reasonably practicable, and such material should be made available to him on request. 495. Nevertheless, in view of the potential chilling effect that any perceived interference with the confidentiality of their communications and, in particular, their sources might have on the freedom of the press and, in the absence of any “above the waterline” arrangements limiting the intelligence services’ ability to search and examine such material other than where “it is justified by an overriding requirement in the public interest”, the Court finds that there has also been a violation of Article 10 of the Convention. (ii) The Chapter II regime 496.", "The applicants in the second of the joined cases also complained under Article 10 of the Convention about the regime for the acquisition of communications data from CSPs. 497. In considering the applicants’ Article 8 complaint, the Court concluded that the Chapter II regime was not in accordance with the law as it permitted access to retained data for the purpose of combating crime (rather than “serious crime”) and, save for where access was sought for the purpose of determining a journalist’s source, it was not subject to prior review by a court or independent administrative body (see paragraph 467 above). 498. The Court acknowledges that the Chapter II regime affords enhanced protection where data is sought for the purpose of identifying a journalist’s source, In particular, paragraph 3.77 of the ACD Code provides that where an application is intended to determine the source of journalistic information, there must be an overriding requirement in the public interest, and such applications must use the procedures of the Police and Criminal Evidence Act 1984 (“PACE”) to apply to a court for a production order to obtain this data (see paragraph 117 above).", "Pursuant to Schedule 1 to PACE, an application for a production order is made to a judge and, where the application relates to material that consists of or includes journalistic material, the application should be made inter partes (see paragraph 121 above). The internal authorisation process may only be used if there is believed to be an immediate threat of loss of human life, and that person’s life might be endangered by the delay inherent in the process of judicial authorisation (paragraphs 3.76 and 3.78-3.84 of the ACD Code – see paragraph 117 above). 499. Nevertheless, these provisions only apply where the purpose of the application is to determine a source; they do not, therefore, apply in every case where there is a request for the communications data of a journalist, or where such collateral intrusion is likely. Furthermore, in cases concerning access to a journalist’s communications data there are no special provisions restricting access to the purpose of combating “serious crime”.", "Consequently, the Court considers that the regime cannot be “in accordance with the law” for the purpose of the Article 10 complaint. (iii) Overall conclusion 500. In respect of the complaints under Article 10 of the Convention, the Court therefore finds a violation in respect of the section 8(4) regime and the Chapter II regime. IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 501.", "The applicants in the third of the joined cases further complained under Article 6 of the Convention that the limitations inherent in the IPT proceedings were disproportionate and impaired the very essence of their right to a fair trial. 502. Article 6 provides, as relevant: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” 503.", "In particular, the applicants contended that there was a lack of independence and impartiality on the part of the IPT, evidenced by the fact that in November 2007 there had been a secret meeting between it and the Security Services which, they alleged, resulted in the adoption of a protocol pursuant to which MI5 agreed not to search or disclose any bulk data holdings relating to complainants; that they were not effectively represented in the closed proceedings; that the IPT failed to require the defendants to disclose key internal guidance; and that, following the hearing, the IPT had made its determination in favour of the wrong party. 504. The Government submitted that Article 6 of the Convention did not apply to surveillance proceedings, since the Commission and the Court had consistently held that decisions authorising surveillance did not involve the determination of “civil rights and obligations” within the meaning of Article 6 § 1. They further contended that even if Article 6 did apply, when the proceedings were taken as a whole the applicants could not be said to have been denied the right to a fair trial. In particular, they observed that the applicants did not have to overcome any evidential burden to apply to the IPT; there was scrutiny of all the relevant material, open and closed, by the IPT, which had full powers to obtain any material it considered necessary; material was only withheld where the IPT was satisfied that there were appropriate public interest and national security reasons for doing so; and finally, the IPT appointed Counsel to the Tribunal who in practice performed a similar function to that of a Special Advocate in closed material proceedings.", "With regard to the meeting in 2007 between MI5 and the IPT, they advised the Court that at the meeting MI5 had indicated that, for the purposes of IPT proceedings, it would not routinely conduct searches of “reference data-bases”, being databases containing information about the population generally (such as the Voter’s Roll or telephone directories), for any mention of a complainant’s name; instead, such searches would only be carried out if the data was “relevant or had been relied on in the course of an investigation”. 505. In their third party intervention, the ENNHRI submitted that the principle of equality of arms – being a core aspect of Article 6 of the Convention – was incompatible with the exclusion of one party from a hearing in which the other participates, other than in exceptional circumstances where adequate procedural safeguards provide protection from unfairness and no disadvantage ensues. 506. To date, neither the Commission nor the Court has found that Article 6 § 1 of the Convention applies to proceedings relating to a decision to place a person under surveillance.", "For example, in Klass v. Germany the Commission found that Article 6 § 1 was not applicable either under its civil or under its criminal limb (see Klass and Others, cited above, §§ 57‑61) and, more recently, in Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 106) the Court “did not perceive anything in the circumstances of the case that could alter that conclusion”. 507. However, the IPT has itself gone further than this Court. In its joint Ruling on Preliminary Issues of Law in the British-Irish Rights Watch Case, it accepted that Article 6 applied to “a person’s claims under section 65(2)(a) and to his complaints under section 65(2)(b) of RIPA, as each of them involves “the determination of his civil rights’ by the Tribunal within the meaning of Article 6(1)” (see paragraph 137 above). Consequently, when the matter came before the Court in Kennedy it did not consider it necessary to reach a conclusion on the matter, since it held that, even assuming that Article 6 § 1 applied to the proceedings in question, there had been no violation of that Article (Kennedy, cited above, §§ 177‑179 and §§ 184-191).", "508. In the present case, it is similarly unnecessary for the Court to reach any firm conclusion on the question of the applicability of Article 6 of the Convention since, for the reasons set out below, it considers that the applicants’ complaint is manifestly ill-founded. 509. With regard to the applicants’ general complaints concerning the procedure before the IPT, including the limitations on disclosure and the holding of public hearings in the interests of national security, the Court recalls that similar complaints were made in Kennedy and the Court, having considered the relevant procedural rules, concluded that in order to ensure the efficacy of the secret surveillance regime, and bearing in mind the importance of such measures to the fight against terrorism and serious crime, the restrictions on the applicant’s procedural rights were both necessary and proportionate and did not impair the very essence of his Article 6 rights (Kennedy, cited above, §§ 177-179 and §§ 184-191). 510.", "The Court sees no reason to come to a different conclusion in the present case. It has already found, in paragraphs 250-265 above, that in view of the IPT’s extensive power to consider complaints concerning the wrongful interference with communications pursuant to RIPA, it was an effective remedy, available in theory and practice, which was capable of offering redress to persons complaining of both specific incidences of surveillance and the general Convention compliance of a surveillance regime. Furthermore, these extensive powers were employed in the applicants’ case to ensure the fairness of the proceedings; in particular, there was scrutiny of all the relevant material, open and closed, by the IPT; material was only withheld from the applicants where the IPT was satisfied that there were appropriate public interest and national security reasons for doing so; and finally, the IPT appointed Counsel to the Tribunal to make submissions on behalf of the applicants in the closed proceedings. 511. Insofar as the applicants complain about the meeting between the IPT and the intelligence services in 2007, the Court considers that, in view of the IPT’s specialist role, the fact that its members met with the services to discuss procedural matters does not, of itself, call into question its independence and impartiality.", "Furthermore, the applicants have not adequately explained how the 2007 meeting impacted on the fairness of their IPT proceedings in 2014 and 2015. Although the applicants appear to suggest that the resulting protocol might have affected the IPT’s ability to access information held about them, the Government’s explanation of the protocol (namely, that it concerned an agreement not to conduct searches of databases containing information about the population generally, such as the Voter’s Roll or telephone directories, unless the data was “relevant or had been relied on in the course of an investigation”) confirms that it could have had no impact on the fairness of the IPT proceedings in the present case. 512. Finally, it would appear that the error regarding the identity of the applicants whose rights were violated was an administrative mistake (see paragraph 53 above) and, as such, does not indicate any lack of rigour in the judicial process. 513.", "Accordingly, the Court considers that the complaint under Article 6 § 1 of the Convention must be rejected as manifestly ill-founded pursuant to Article 35 § 3 (a) of the Convention. V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION COMBINED WITH ARTICLES 8 AND 10 OF THE CONVENTION 514. The applicants in the third of the joined cases further complained under Article 14 of the Convention, read together with Articles 8 and 10, that the section 8(4) regime was indirectly discriminatory on grounds of nationality because persons outside the United Kingdom were disproportionately likely to have their private communications intercepted; and section 16 of RIPA provides additional safeguards only to persons known to be in the British Islands. 515. Article 14 provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 516.", "However, the applicants have not substantiated their claim that persons outside the United Kingdom are disproportionately likely to have their private communications intercepted under the section 8(4) regime. First of all, although the regime targets “external communications”, this is defined as “a communication sent or received outside the British Islands”. This does not, therefore, exclude the interception of communications where one of the parties is in the British Islands. Secondly, and in any event, it has already been acknowledged that “internal communications” (where both the sender and receiver are in the British Islands) are frequently – and lawfully – intercepted as a by-catch of a section 8 (4) warrant. 517.", "Insofar as section 16 prevents intercepted material from being selected for examination according to a factor “referable to an individual who is known to be for the time being in the British Islands”, any resulting difference in treatment would not be based directly on nationality or national origin, but rather on geographical location. In Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000‑VI the Court held that as such a difference in treatment could not be explained in terms of personal characteristics, it was not a relevant difference in treatment for the purposes of Article 14 of the Convention and did not amount to discriminatory treatment within the meaning of Article 14 of the Convention (see Magee, cited above, § 50). 518. In any event, the Court is of the view that any difference in treatment based on geographic location was justified.", "The Government have considerable powers and resources to investigate persons within the British Islands and do not have to resort to interception of their communications under a section 8(4) warrant. They do not, however, have the same powers to investigate persons outside of the British Islands. 519. Accordingly, the Court considers that the complaint under Article 14 of the Convention, read together with Articles 8 and 10, must be rejected as manifestly ill-founded pursuant to Article 35 § 3(a) of the Convention. VI.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 520. 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 521. The applicants did not submit any claim in respect of pecuniary or non-pecuniary damage. Accordingly, the Court considers that there is no call to award them any sum on that account.", "B. Costs and expenses 522. The applicants in the first and second of the joined cases made a claim for costs and expenses incurred before the Court. The applicants in the first of the joined cases claimed GBP 208,958.55 in respect of their costs and expenses; and the applicants in the second of the joined cases claimed GBP 45,127.89. The applicants in the third of the joined cases made no claim in respect of costs and expenses.", "523. The Government did not comment on the sums claimed. 524. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants in the first of the joined cases the sum of EUR 150,000 for the proceedings before the Court; and the applicants in the second of the joined cases the sum of EUR 35,000 for the proceedings before the Court.", "C. Default interest 525. 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. FOR THESE REASONS, THE COURT: 1. Declares, unanimously, the complaints made by the applicants in the third of the joined cases concerning Article 6, Article 10, insofar as the applicants rely on their status as NGOs, and Article 14 inadmissible; 2. Declares, unanimously, the remainder of the complaints made by the applicants in the third of the joined cases admissible; 3.", "Declares, by a majority, the complaints made by the applicants in the first and second of the joined cases admissible; 4. Holds, by five votes to two, that there has been a violation of Article 8 of the Convention in respect of the section 8(4) regime; 5. Holds, by six votes to one, that there has been a violation of Article 8 of the Convention in respect of the Chapter II regime, 6. Holds, by five votes to two, that there has been no violation of Article 8 of the Convention in respect of the intelligence sharing regime; 7. Holds, by six votes to one, that, insofar as it was raised by the applicants in the second of the joined cases, there has been a violation of Article 10 of the Convention in respect of the section 8(4) regime and the Chapter II regime; 8.", "Holds, unanimously, that there is no need to examine the remaining complaints made by the applicants in the third of the joined cases under Article 10 of the Convention; 9. Holds, by six votes to one, (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) to the applicants in the first of the joined cases: EUR 150,000 (one hundred and fifty thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (ii) to the applicants in the second of the joined cases: EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; and 10. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposLinos-Alexandre SicilianosRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) partly concurring, partly dissenting opinion of Judge Koskelo, joined by Judge Turković; and (b) joint partly dissenting and partly concurring opinion of Judges Pardalos and Eicke.", "L.-A.S.A.C. APPENDIX List of Applicants App. No. Applicants 58170/13 Big Brother Watch 58170/13 English PEN 58170/13 Open Rights Group 58170/13 Dr Constanze Kurz 62322/14 Bureau of Investigative Journalism 62322/14 Alice Ross 24960/15 Amnesty International Limited 24960/15 Bytes For All 24960/15 The National Council for Civil Liberties (“Liberty”) 24960/15 Privacy International 24960/15 The American Civil Liberties Union 24960/15 The Canadian Civil Liberties Association 24960/15 The Egyptian Initiative For Personal Rights 24960/15 The Hungarian Civil Liberties Union 24960/15 The Irish Council For Civil Liberties Limited 24960/15 The Legal Resources Centre PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE KOSKELO, JOINED BY JUDGE TURKOVIĆ 1. I have voted, and agree, with the majority as regards points 1 to 3 of the operative provisions of the judgment, which concern the admissibility of the complaints.", "I have also joined the majority in finding a violation of Article 8 in respect of both the section 8(4) regime and the Chapter II regime. As regards the section 8(4) regime, however, I am not able in all respects to subscribe to the reasons given by the majority. As far as the intelligence sharing regime is concerned, unlike the majority, I have voted for finding a violation of Article 8. I. The RIPA section 8(4) regime 2.", "The present case concerns legislation providing for secret surveillance, by means of bulk interception, of electronic communications which qualify as “external” (for an understanding of the concept of “external” communications see paragraphs 69-71 of the judgment). It is important to note that this type of secret surveillance of communications is not limited to certain already known or identified targets but is aimed at the discovery of threats and hitherto unknown or unidentified targets which might be responsible for threats (see paragraph 284 of the judgment). The relevant threats are broadly framed and comprise threats to national security or to the economic well-being of the country as well as threats arising from serious crime (see §§ 57-59). 3. It is obvious that such an activity – an untargeted surveillance of external communications with a view to discovering and exploring a wide range of threats – by its very nature takes on a potentially vast scope, and involves enormous risks of abuse.", "The safeguards against those risks, and the standards which under the Convention should apply in this regard, therefore raise questions of the highest importance. I am not convinced, in the light of present-day circumstances, that reliance on the Court’s existing case-law provides an adequate approach to the kind of surveillance regimes like the one we are dealing with here. A more thorough reconsideration would be called for. I acknowledge that this would be a task for the Court’s Grand Chamber. I will only raise some concerns which, in my view, require attention in this regard.", "(i) The context of earlier case-law 4. Apart from the recent Chamber judgment in Centrum för Rättvisa v. Sweden (no. 35252/08, 19 June 2018), which is not yet final, the Court’s case-law has not dealt with the present kind of surveillance but with regimes which, as a matter of either law or fact, have been narrower in scope. Furthermore, in the light of current developments, I consider that reliance on the line of existing case-law is no longer an adequate basis for assessing the standards which under the Convention should govern this particular domain. 5.", "The Court’s case-law on secret surveillance of communications essentially dates back to Klass and Others v. Germany (cited in the judgment) which was decided by the Plenary Court four decades ago, and the admissibility decision in Weber and Saravia v. Germany (also cited in the judgment), which concerned an amended version of the same German legislation and was decided twelve years ago, in response to a complaint lodged in the year 2000. 6. As the Court noted in Klass and Others, the German legislation then at issue (the G 10) laid down a series of limitative conditions which had to be satisfied before a surveillance measure could be imposed. Thus, the permissible restrictive measures were confined to cases in which there were factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures could only be ordered if the establishment of the facts by another method was without any prospect of success or considerably more difficult; even then, the surveillance could cover only the specific suspect or his presumed “contact-persons”. Thus, the Court observed, “so-called exploratory or general surveillance [was] not permitted by the contested legislation” (see Klass and Others, § 51).", "7. In this regard, the RIPA section 8(4) regime which is at issue in the present case is different from that in Klass and Others in that the section 8(4) regime does encompass what the Court then referred to as “exploratory” surveillance and which in fact constitutes an essential and critical feature of this particular regime. Consequently, the scope and purpose of the surveillance regime now at issue is wider than that addressed in Klass and Others. 8. In Weber and Saravia, the complaint concerned a revised version, adopted in 1994, of the German G 10, whereby the scope of permissible surveillance was extended to cover the monitoring of international wireless telecommunications (see Weber and Saravia, § 88) in order to allow a “strategic surveillance” of such communications by means of catchwords.", "According to the Government’s submissions in that case, at the relevant time merely some ten per cent of all telecommunications were conducted by wireless means, and thus potentially subject to monitoring. In practice, monitoring was restricted to a limited number of foreign countries. The telephone connections of the State’s own (i.e. German) nationals living abroad could not be monitored directly. The identity of persons telecommunicating could only be uncovered in rare cases in which a catchword had been used (ibid., § 110).", "9. The surveillance regime at issue in Weber and Saravia covered international wireless communications traffic, i.e. traffic transmitted via microwave or satellite, the latter operating through a survey of the downlink to Germany. Line-bound international communications were not subject to monitoring except where the risk of a war of aggression was concerned. 10.", "It is noteworthy that at the time of the surveillance regime which gave rise to the complaint in Weber and Saravia, strategic monitoring was mainly carried out on telephone, telex and fax communications. In those days, surveillance did not extend to email communications (see the judgment of the Federal Constitutional Court of 14 July 1999, 1BvR 2226/94, 1 BvR 2420/95, 1 BvR 2437/95, Rn 230, according to which, at the time of the hearing of the case in 1999, an expansion of strategic monitoring to email communications was only being planned for the future). One significant feature of communications by email, apart from the fact that nowadays they are so common, is that the identity of both the sender and recipient is usually directly available. Furthermore, many currently used means of communication or access to information through the Internet were only at embryonic stages at the time of the domestic complaint in Weber and Saravia. (ii) The context of the present case 11.", "My point with the remarks above is to draw attention to the factual environment against the background of which those earlier cases were adjudicated, and the dramatic changes that have occurred since. The applicants have indeed referred to the technological “sea change” which has taken place. 12. What is important to note in this regard is that the technological “sea change” has had a twofold impact. On the one hand, technological developments have advanced the means by which surveillance of communications can be carried out.", "On the other hand, new technologies have revolutionised the ways in which people communicate, access, use and share information. That change is deeper than just a matter of volume. The digital age has in some respects transformed people’s lifestyles. 13. As a result of these changes, the potential exposure nowadays of a vast range of communications and other online activities to secret surveillance is far greater than before.", "In the wake of such developments, the potential risks of abuse arising from such surveillance have increased as well. Thus, the factual context in which “exploratory” or “strategic” secret surveillance operates is dramatically different from the circumstances that still prevailed a couple of decades ago, when the Weber and Saravia application was lodged, let alone four decades ago, when Klass and Others was decided. In the light of such changes, it is problematic and troubling to approach the question of the necessary safeguards against abuse simply by applying standards that were considered sufficient under significantly or even essentially different factual circumstances. 14. Furthermore, the “sea change” in terms of technologies and digitalised lifestyles is not the only development to be taken into consideration.", "The threats on account of which surveillance of communications is considered necessary have also changed. In this regard, too, the picture is twofold. One the one hand, for instance, there have been real and well-known aggravations in the risks of international terrorism. On the other, there is also increasing evidence of how various threats can be invoked, rightly or wrongly, in order to justify measures that entail restrictions on individual rights and freedoms. The notion of terrorism, for instance, may sometimes be used quite loosely and opportunistically in a desire to legitimise interferences with such rights and freedoms.", "Especially where secret surveillance is conducted in order to discover and explore broadly formulated threats such as those to national security or the nation’s economic well-being, the need for real safeguards through independent control and review is obvious. 15. There is yet another “sea change” calling for heightened attention in the assessment of the necessary standards in the context of secret surveillance of communications. It is the degradation of respect for democratic standards and the rule of law of which there is increasing evidence in a number of States. While I am not suggesting that the present respondent State is a case in point in this regard, the Convention standards must nevertheless be considered in the light of the fact that such developments testify to the actual or potential fragility of safeguards, institutional arrangements and the underlying assumptions that in ideal circumstances might appear adequate in order to minimise the risks of abuse.", "In fact, the same threats that are invoked to justify secret surveillance may also serve to reinforce tendencies toward a weakening of the checks and balances which underpin adherence to the rule of law and democratic governance. (iii) Concerns 16. In line with the majority, I agree that the Contracting States must enjoy a wide margin of appreciation in determining whether the protection of national security requires the kind of surveillance of communications which is at issue in the present case (paragraph 314 of the present judgment). However, given the high risks of abuse, which at worst may undermine not only individual rights and freedoms but democracy and the rule of law more generally, the margin must be narrow when it comes to the necessary safeguards against abuse. 17.", "Under the impugned legislation, one of the striking features is that all of the supervisory powers entrusted to authorities with independence from the executive are of an ex post nature. Another striking feature is that not only are the general protective aims of the legislation very broadly framed, but also the specific authorisations (warrants and certificates) issued by the Secretary of State appear to be formulated in very broad and general terms (see paragraphs 156 and 342). Furthermore, the concrete search and selection criteria which are applied to filter intercepted communications for reading of their content are determined by the analysts conducting the surveillance (see paragraphs 157, 340 and 345-46 of the present judgment). As indicated by the domestic findings, the latter are not even subject to any meaningful subsequent oversight by independent bodies (see paragraphs 157 and 340). 18.", "Ever since Klass and Others, the Court has indeed held that in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist adequate and effective guarantees against abuse (see Klass and Others, §§ 49-50). 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 authorise, carry out and supervise them, and the kind of remedy provided by the national law (ibid., § 50). 19. As discussed above, in the light of the changes in both the nature and scope of surveillance and in the prevailing factual realities, the circumstances have indeed evolved in such a way and to such an extent that I find it difficult to accept that the adequacy of safeguards should nevertheless be assessed simply by relying on the case-law that has arisen under different legal and factual framework conditions. 20.", "In particular, given the present overall context, I question the approach according to which prior independent control by a judicial authority should not be a necessary requirement in the system of safeguards. 21. Already in Klass and Others, when considering the initial stage of control, the Court stated that, in a field where abuse was potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it was in principle desirable to entrust supervisory control to a judge (see Klass and Others, § 56). Under the G 10 legislation, judicial control was replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission. In that case the Court concluded that, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the exclusion of judicial control did not exceed the limits of what might be deemed necessary in a democratic society.", "The Court noted that the Parliamentary Board and the G 10 Commission were independent of the authorities carrying out the surveillance and vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character was reflected in the balanced membership of the Parliamentary Board, on which the opposition was represented and was thus able to participate in the control of the measures ordered by the competent Minister, who was accountable to the Bundestag. The Court found that the two supervisory bodies could, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling (ibid.). 22. As indicated above, in my view the legal and factual circumstances of that case, which go back four decades, cannot be considered comparable to the situation now under consideration.", "It is somewhat striking that in Weber, despite the important changes in the legislative and factual framework, the Court succinctly stated that it saw no reason to reconsider the conclusion in Klass and Others (see Weber and Saravia, § 117). In any event, in the light of the circumstances prevailing at the present time, such reconsideration seems to me to be indispensable. 23. Where, as in the present case, the interception (as a matter of technical necessity) encompasses vast volumes of communications traffic in an indiscriminate manner, without being linked to any kind of prior elements of suspicion related to the threats by reason of which the surveillance is conducted, everything in terms of the protection of individuals and their rights depends on whether and how the subsequent stages of the treatment of the intercepted communications provide effective and reliable safeguards for those rights, and against any abuse of the surveillance. Under such circumstances, given the potential intrusiveness of the surveillance and the abundant risks of abuse, I consider that it cannot be appropriate that all the ex ante safeguards remain in the hands of the executive.", "I think the applicants are right to argue that there is a need for an “updating” of the standards as regards prior independent judicial authorisation. It seems to me to be important that the authorities of the executive branch should be required to explain and justify before an independent judicial authority the grounds on which a particular surveillance should be authorised, and to account for the search criteria on the basis of which the intercepted communications will be filtered and selected for a review of their content. 24. In this respect, I am not convinced by the arguments advanced by the majority in support of the position that prior judicial control is unnecessary (paragraphs 318-20). The majority acknowledge that judicial authorisation is not inherently incompatible with the effective functioning of bulk interception (paragraph 318).", "Indeed, the recent case of Centrum för Rättvisa v. Sweden (cited above) offers an illustration, as it deals with Swedish legislation under which prior judicial authorisation is required. 25. The main argument against imposing such a requirement appears to be that it would not entail a sufficient safeguard, and that even in the absence of prior judicial authorisation the existence of independent oversight by the IPT and the Interception of Communications Commissioner provide adequate safeguards against abuse. In my view, it is obvious that prior judicial authorisation cannot in itself be sufficient and that further, robust safeguards such as those in place in the UK are indeed required. However, the fact that a given safeguard would not be sufficient is not enough to support a conclusion that it should not be considered necessary.", "In my opinion, it is quite essential to have in place an adequate system of safeguards, including controls exercised by independent bodies, both ex ante and ex post. 26. While the safeguards ex post that are provided for in the UK legislation and practice appear to set a good model in this domain, this does not in my view suffice to remedy the fact that the authorisation and implementation of the surveillance are wholly in the hands of the executive authorities, without any independent control ex ante. In this respect, the system of safeguards is even weaker than that considered by the Court in both Klass and Others and Weber and Saravia, in that under the German G 10 regime, although the surveillance was not subject to prior authorisation by a court, it had to be authorised by the G 10 Commission (see Weber and Saravia, cited above, § 115), which was not an executive branch body (ibid., § 25). Moreover, according to the judgment of the Federal Constitutional Court of 14 July 1999 (cited above, Rn 87), a list of search concepts was part of each restriction order, whereas in the present case it has transpired that the search and selection criteria are determined by the analysts operating the surveillance and are not subject to any prior supervision, nor any meaningful subsequent oversight (see paragraphs 157, 340 and 345-46 of the present judgment).", "27. In sum, what we have before us now is a regime of secret surveillance, the reach of which under the prevailing factual circumstances is unprecedented, and under which a very wide operational latitude is left to the services operating the surveillance, without any independent ex ante control or constraint, and under which the search and selection criteria are not even ex post subject to any robust independent control. I find such a situation highly problematic. An independent ex ante control is all the more important because of the secret nature of the surveillance, which in practice reduces the possibility that individuals will have recourse to the safeguards available ex post. 28.", "I also consider that the remarks made by the majority in paragraph 319 of the judgment are not capable of supporting a conclusion according to which prior independent judicial authorisation should not be required. Rather, the argument that even judicial scrutiny may fail its function serves to underline the crucial importance which attaches to the requirement that such control must have effective guarantees of independence, in order to meet the proper standards of the necessary safeguards. 29. In short, while I agree with the conclusions set out in paragraph 387 of the judgment, I do not consider those shortcomings to be the only ones that justify a finding of a violation of Article 8 in the present case. In particular, taking into account the present legal and factual context, I do not believe that the necessary safeguards in the circumstances of surveillance based on the bulk interception of communications can be sufficient without including an independent ex ante judicial control.", "The position according to which prior judicial control of authorisations for secret surveillance of communications was a desirable but not a necessary safeguard stems from Klass and Others which, firstly, concerned a more limited surveillance regime than the one now at issue and did not permit “exploratory surveillance” at all, and which, secondly, was decided four decades ago against the backdrop of factual circumstances that in many relevant respects were different from those prevailing today. That position was later, in Weber and Saravia, carried over to a surveillance regime which did have more similarities with the RIPA section 8(4) regime but nevertheless operated in conditions very different from those prevailing in the modern digitalised societies. For the reasons outlined above, that position should, in my view, no longer be maintained by the Court. II. The intelligence-sharing regime 30.", "It is easy to agree with the principle that any arrangement under which intelligence from intercepted communications is obtained via foreign intelligence services, whether on the basis of requests to carry out such interception or to convey its results, should not be allowed to entail a circumvention of the safeguards which must be in place for any surveillance by domestic authorities (see paragraphs 216, 423 and 447). Indeed, any other approach would be implausible. 31. On this basis I consider, in sum, that the shortcomings referred to above in the context of the section 8(4) regime also attach to the intelligence-sharing regime (see paragraphs 109 and 428-29). I therefore conclude that the safeguards have not been adequate and that there has been a violation of Article 8 in respect of this regime also.", "JOINT PARTLY DISSENTING AND PARTLY CONCURRING OPINION OF JUDGES PARDALOS AND EICKE Introduction 1. For the reasons set out in more detail below, we are unfortunately, not able to agree with the majority in relation to two aspects of the judgment in this case; namely (a) that the applicants in the first and second of the joined cases had shown “special circumstances absolving them from the requirement to exhaust” domestic remedies by first bringing proceedings before the IPT (§§ 266-268 and operative part § 3; “admissibility”); and (b) that there has been a breach of Article 8 of the Convention in respect of the section 8(4) regime (§ 388 and operative part § 4; “the section 8(4) regime”). 2. In relation to the latter issue our position is reinforced by the contrast between the conclusions reached by the majority in this case and that reached in the judgment in Centrum För Rättvisa v. Sweden, no. 35252/08 (not yet final); a judgment adopted by the Third Section of this Court on 19 June 2018, a mere two weeks before the final deliberations in this case.", "In that case, the Court concluded, unanimously, that, despite having identified “some areas where there is scope for improvement” (§ 180) and “making an overall assessment and having regard to the margin of appreciation enjoyed by the national authorities in protecting national security” (§ 181), the Swedish system of signals intelligence provided adequate and sufficient guarantees against arbitrariness and the risk of abuse; as a consequence, it was held that the relevant legislation met the “quality of law” requirement, that the “interference” established could be considered as being “necessary in a democratic society” and that the structure and operation of the system were proportionate to the aim sought to be achieved. 3. That said, we agree both with: (a) the underlying general principles identified by the Court both in this case and in Centrum För Rättvisa to be applied in relation to these aspects of the case; as well as (b) the conclusion of the majority in this case that, for the reasons given in the judgment, there has been no breach of Article 8 of the Convention in relation to the intelligence sharing regime (§§ 447-448 and operative part § 6) and that there is no need to examine the remaining complaints made by the applicants in the third of the joined cases under Article 10 of the Convention. 4. In relation to the findings that there has been a breach of the Convention in relation to the Chapter II regime (§§ 468 and 500, operative part §§ 5 and 7) as well as the conclusions under Article 41 of the Convention (operative part § 9), one of us (Judge Pardalos) considered that her conclusion on the admissibility of the first and second of the joined cases invariably determined the related substantive issues against the applicants in those cases.", "By contrast, Judge Eicke considered that, the Court having decided that the first and second cases were, contrary to his view, admissible he was required, as a member of that Court, to go on and decide those cases on the merits by reference to the evidence and pleadings before the Court. Admissibility 5. As indicated above, we agree with the majority that, for the reasons they give, the IPT is and has been an effective remedy “since Kennedy was decided in 2010” (§ 268); i.e. a remedy which is “available in theory and practice” and “capable of offering redress to applicants complaining of both specific incidences of surveillance and the general Convention compliance of surveillance regimes” (§ 265). Consequently, applicants before this Court will be expected to have exhausted this domestic remedy before the Court has jurisdiction to entertain their application under Article 35 § 1 of the Convention.", "6. In addition to the purely legal point that, under Article 35 § 1, the Court “may only deal with the matter after all domestic remedies have been exhausted”, we would underline what the majority says in § 256 about the invaluable assistance derived by the Court, in examining a complaint before it, from the “elucidatory” role played by the domestic courts (in this case the IPT) both generally as well as in the specific context of considering the compliance of a secret surveillance regime with the Convention. 7. For the reasons set out below, however, we disagree with the conclusion reached by the majority (§ 268) that there existed, in this case, “special circumstances” absolving the applicants in the first and second of the joined cases from satisfying this requirement. 8.", "Firstly, as the majority implicitly accepts (§ 267), the case of Kennedy is clearly distinguishable on its facts from the present case. After all, the applicant in that case had already brought a specific complaint about the section 8(1) regime before the IPT before applying to this Court. Consequently, unlike the applicants in the first and second of these joined cases, Mr Kennedy was not inviting the Court to consider his general complaint entirely in abstracto. Furthermore, in its judgment in that case, the Court considered it “important” that his challenge was (consequently) exclusively a challenge to primary legislation. By contrast, in the present cases the scope of each of the regimes complained of (bulk interception, intelligence sharing and the acquisition of communications data) is significantly broader than that of the section 8(1) regime, and the applicants’ complaints concern not only primary legislation, but the overall legal framework governing those regimes (including the alleged absence of any relevant arrangements or other safeguards).", "Consideration of the broader legal framework necessarily requires an examination of both RIPA and the relevant Codes of Practice, together with any “below the waterline” arrangements and/or safeguards. In view of the much broader scope of both their complaints and the impugned regimes, none of which had been the subject of any examination by the IPT, it should have been evident to the applicants in the first and second of the joined cases – who were, at all times, represented by experienced counsel – that, unlike Kennedy, this was a case in which the general operation of these regimes required further elucidation, and in which the IPT, on account if its “extensive powers ... to investigate complaints before it and to access confidential information” would have been capable of providing a remedy. 9. There is, therefore, also no basis for any suggestion that our approach seeks, in any way, to overturn or “disapply” the Court’s unanimous ruling in Kennedy. The simple fact is that, in our view, the two are clearly and obviously distinguishable.", "10. Secondly, the first applicant, was clearly informed by the Government, in their response to the letter before action of 26 July 2013 (§ 19), that their complaints could be raised in the IPT, a court established specifically to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act and a court endowed with exclusive jurisdiction to investigate any complaint that a person’s communications have been intercepted and, where interception has occurred, to examine the authority for such interception. This letter was, of course, sent at around the same time as the ten human rights organisations which are the applicants in the third of the joined cases, no doubt recognising the need to have exhausted existing effective domestic remedies before applying to this Court, lodged their complaints before the IPT (June to December 2013; § 21). It was also four years after the UK Supreme Court, in its judgment in R (on the application of A) v B [2009] UKSC 12, had confirmed the exclusive jurisdiction of the IPT and its ability, as demonstrated by its decisions in Kennedy (IPT/01/62 & 77) and The British-Irish Rights Watch and others v Security Service, GCHQ and the SIS (IPT/01/77), to adjust the procedures before it as necessary so as to ensure that disputes before it can be determined justly. 11.", "Thirdly and in any event, even if, contrary to our view, the applicants in the first and second of the joined cases would have been entitled to rely on Kennedy at the time they lodged their applications with the Court they nevertheless accepted before this Court (§ 241), by reference to the judgment in Campbell and Fell v. the United Kingdom, 28 June 1984, §§ 62-63, Series A no. 80, that in light of any finding by the Court to the effect that the IPT is an effective remedy, they would now be required to go back and exhaust unless it would be unjust to require them to do so. As these applicants’ complaints concern the general operation of the impugned regimes, rather than specific complaints about an interference with their rights under the Convention, they would still be entitled to raise them before the IPT now. 12. Many of the complaints advanced in the first and second of the joined applications (including, in particular, all of those relating to the Chapter II regime, the sharing of non-intercept material with foreign governments and the lack of protection for confidential journalistic material and journalistic sources under the section 8(4) regime) were not addressed in the Liberty proceedings and have not yet been determined by the IPT.", "Consequently, there is no reason to doubt that if the applicants were now to raise those complaints before the IPT, they would have “a reasonable prospect of success”. In fact, in respect of the Chapter II complaint it may be thought that they would have a more than reasonable prospect of success. After all, as the majority records in § 463 of the judgment, the Government, in response to a challenge brought by Liberty, recently conceded that Part 4 of the IPA (which included a power to issue “retention notices” to telecommunications operators requiring the retention of data) was incompatible with fundamental rights in EU law: R (The National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department & Anor [2018] EWHC 975 (Admin). As Chapter II of RIPA, like Part 4 of the IPA, permits access to data for the purpose of combating crime (as opposed to “serious crime”), this concession lead the majority to find a violation of Article 8 of the Convention in relation to the Chapter II regime (§ 467) which would suggest that the applicants had a strong basis for challenging, at the domestic level, the compliance of the Chapter II regime with EU law and, indeed, the Convention. 13.", "The same could not necessarily be said about those complaints raised by the first and/or second of the joined cases which were determined by the IPT in the Liberty proceedings; however, those issues were, of course, also raised by the applicants in the third of the joined cases and would therefore (and in fact have been) considered and determined by the Court on its merits. 14. As a result, and in clear contrast with the ultimate conclusion in Campbell and Fell, there is here therefore no evidence to suggest that “it would be unjust now to find these complaints inadmissible for failure to exhaust domestic remedies” (ibid. at § 63). Consequently, in our view, both the requirements of Article 35 § 5 of the Convention as well as the application of the principle of subsidiarity, in fact, required such a finding.", "15. The point made in the judgment about the fundamental importance of the “elucidatory” role of the domestic courts is further underlined by the complaint made in relation to the Chapter II regime. After all, as the judgment records in § 451, in both their application to the Court and their initial observations, the applicants in the second of the joined cases had incorrectly referred to the Chapter II regime as a regime for the interception of communications data; rather than a regime which permits certain public authorities to acquire communications data from Communications Service Providers (“CSPs”). This “fundamental legal misunderstanding” led the Government to submit inter alia that the applicants had put forward no factual basis whatsoever for concluding that their communications were acquired in this way, and that they did not contend that they had been affected, either directly or indirectly, by the regime. 16.", "As noted above, the Court’s conclusion on the Chapter II regime was, of course, ultimately based on the concession by the Government in R (The National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department & Anor [2018] EWHC 975 (Admin) which enabled the majority to find that the equivalent language in the Chapter II regime was “not in accordance with the law” within the meaning of Article 8 of the Convention (§ 467). However, had that not been the case, this Court would have been confronted with the task of considering in detail whether the regime’s attendant safeguards were sufficient to satisfy the requirements of the Convention; and that (1) on the basis of a case initially advanced on the basis of a “fundamental legal misunderstanding” about the nature of the regime, (2) without any assistance or findings by the IPT in relation to what the attendant safeguards, both above and below the waterline, in fact were and/or (3) any reasoned conclusion by the IPT as to whether or not they satisfied the requirements of Article 8 (or could be made to satisfy the requirements of Article 8 by means of further disclosure akin to that ordered on 9 October 2014 in the proceedings brought by the applicants in the third of the joined applications). This would plainly have been a wholly undesirable state of affairs. The section 8(4) regime 17. As indicated above, there is much in the judgment of the majority we agree with.", "18. Firstly, we agree with the majority (as well as with the unanimous judgment in Centrum För Rättvisa) in relation to the relevant general principles as set out in the judgment. In particular we agree with the affirmation by the majority (as well as the judgment in Centrum För Rättvisa and the report by the Venice Commission) that while the Court has considered prior judicial authorisation to be an important safeguard, and perhaps even “best practice”, it has also repeatedly confirmed that, by itself, such prior judicial authorisation is neither necessary nor sufficient to ensure compliance with Article 8 of the Convention (§ 320). 19. Secondly, we also agree with the majority in identifying as potential shortcomings (or, to use the language in Centrum För Rättvisa “areas where there is scope for improvement”) in the operation of the section 8(4) regime “the lack of oversight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst; and secondly, the absence of any real safeguards applicable to the selection of related communications data for examination” (§ 387).", "20. Finally, we agree with the majority as to the correct approach to be applied when considering whether the system under review satisfied the requirement of being “necessary in a democratic society” under Article 8 § 2 of the Convention, namely that: “... regard must be had to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92) (§ 320) ... it must principally have regard to the actual operation of a system of interception as a whole, including the checks and balances on the exercise of power, and the existence (or absence) of any evidence of actual abuse (...), such as the authorising of secret surveillance measures haphazardly, irregularly or without due and proper consideration (see Roman Zakharov, cited above, § 267) (§ 377).” 21. Where we disagree is (again) in the application of that approach to the system under review. 22. Before setting out in little more detail the basis for our disagreement we note in passing that this Court’s underlying approach appears to be in clear contrast to the approach taken by the CJEU in Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Settinger and Others (Cases C-293/12 and C-594/12) and Secretary of State for the Home Department v. Watson and Others (C-698/15).", "In the former case, the CJEU was considering the validity of the Data Retention Directive, and in the latter, the validity of domestic legislation containing the same provisions as that directive. While its focus was on the retention of data by CSPs, it also considered the question of access to retained data by the national authorities. In doing so, it indicated that access should be limited to what was strictly necessary for the objective pursued and, where that objective was fighting crime, it should be restricted to fighting serious crime. It further suggested that access should be subject to prior review by a court or independent administrative authority, and that there should be a requirement that the data concerned be retained within the European Union. Therefore, while there is some similarity in the language used by the two courts, the CJEU appears to have adopted a more prescriptive approach as regards the safeguards it considers necessary.", "This may be due to the fact that in both cases it was considering the rights guaranteed by reference to Articles 7 (Respect for private and family life) and 8 (Protection of personal data) of the Charter of Fundamental Rights. However, while in Watson the CJEU declined to state whether the protection provided by Articles 7 and 8 of the Charter was wider than that afforded by Article 8 of the Convention, we can but note that, on the one hand, Article 52 § 3 of the Charter of Fundamental Rights, while recognising the ability of EU law providing more extensive protection, is clearly expressed by reference to “rights” guaranteed by the Convention (rather than “Articles”) corresponding to “rights” contained in the Charter and that, on the other hand, this Court has, at least since the 1978 judgment of the Plenary Court in Klass and Others v. Germany, Series A no. 28, consistently protected the right to the protection of personal data under Article 8 of the Convention. In any event, in Ben Faiza v. France, no. 31446/12, 8 February 2018, which was decided one year after Watson, and four years after Digital Rights Ireland, this Court did not follow the CJEU’s approach, preferring instead to follow its well-established approach and to review the impugned regime as a whole in order to evaluate the adequacy of the available safeguards.", "23. In any event, applying this Court’s well-established approach, it is in our view, clear from the (in the context of secret surveillance cases unusually) extensive and detailed (publicly available) evidence in relation to the operation of the section 8(4) regime (summarised over some 35 pages in the judgment) that, despite the identified areas where there is scope for improvement, these are not, in themselves, sufficiently significant to justify the conclusion that “the section 8(4) regime does not meet the ‘quality of law’ requirement and is incapable of keeping the ‘interference’ to what is ‘necessary in a democratic society’” (§ 388). On the contrary, adopting the approach of this Court in Centrum För Rättvisa, § 181, it is clear in our view that, making an overall assessment and having regard to the margin of appreciation enjoyed by the national authorities in protecting national security, the section 8(4) regime does provide adequate and sufficient guarantees against arbitrariness and the risk of abuse. As a result, we concluded that the relevant legislation meets the “quality of law” requirement and the “interference” established can be considered as being “necessary in a democratic society” and that there was, therefore, no violation of Article 8 of the Convention. 24.", "In this context, the contrast to the judgment in Centrum För Rättvisa is instructive. After all, in that case the Court applied the same general principles to the Swedish bulk interception regime and concluded, unanimously, that there was no breach of Article 8 of the Convention. Conscious of the difficulty – at times – in making detailed meaningful comparisons between different interception regimes, it is nevertheless noteworthy that the regime under consideration in that case, while equipped with judicial prior authorisation: (a) was completely shrouded in secrecy with the Court having little meaningful information at all either about the actual generic operation of the system (including the actual operation of the Foreign Intelligence Court (“FIC”) itself) or the impact of the system on and/or operation of safeguards in relation to any individual; (b) provided that, in principle, the FIC should hold public hearings but found that there has never been a public hearing, all decisions are confidential and no information is disclosed to the public about the number of hearings, the number of permits granted or rejected, the reasoning of the court’s decisions or the amount or type of search terms being used. While the FIC is assisted by the “privacy protection representative” whose role it is to protect the “interests of the general public” he or she does not appear on behalf of or represent the interests of any affected individual. Furthermore, the privacy protection representative cannot appeal against a decision by the FIC or “report any perceived irregularities to the supervisory bodies”; (c) was concerned with interception by the National Defence Radio Establishment (“FRA”) on behalf of, and which, therefore, required communication of the intercept material to, a much wider group “clients” (“the Government, the Government Offices, the Armed Forces and, as from January 2013, the Security Police and the National Operative Department of the Police Authority”); (d) provided for authorisation of interception for a greater number (eight) of “purposes” (“1) external military threats to the country, 2) conditions for Swedish participation in international peacekeeping or humanitarian missions or threats to the safety of Swedish interests in the performance of such operations, 3) strategic circumstances concerning international terrorism or other serious cross-border crimes that may threaten essential national interests, 4) the development and proliferation of weapons of mass destruction, military equipment and other similar specified products, 5) serious external threats to society’s infrastructure, 6) foreign conflicts with consequences for international security, 7) foreign intelligence operations against Swedish interests, and 8) the actions or intentions of a foreign power that are of substantial importance for Swedish foreign, security or defence policy”); (e) had similar difficulties to those identified in relation to the UK regime to separate out non-external communications between a sender and receiver within the respective State at the point of collection; (f) allows for the communication of intercept product not only to other states but also to “international organisations” (not further defined) where that is “not prevented by secrecy and if necessary for the FRA to perform its activities within international defence and security cooperation” and “it is beneficial for the Swedish government or Sweden’s comprehensive defence strategy” and without any provision requiring the third country/international organisation recipient to protect the data with the same or similar safeguards as those applicable internally; and (g) provided for an obligation to notify the subject of an intercept after the event; an obligation which, however, “had never been used by the FRA, due to secrecy.", "25. Considering the accepted difficulty in making a meaningful comparison between two or more distinct interception regime together with the different conclusions reached by this Court at about the same time, in our view, further underlines the importance of the Court adopting an approach of asking whether, taking “an overall assessment and having regard to the margin of appreciation enjoyed by the national authorities in protecting national security” the system adopted provides adequate and sufficient guarantees against arbitrariness and the risk of abuse, even if there may be individual aspects of any system which might be capable of being altered or improved. Such an approach properly reflects the role of the Convention, which is to set down “minimum standards” that can be applied across all Member States. Provided that – following an overall assessment – the Court finds that a system for bulk interception provides adequate and sufficient guarantees against arbitrariness and abuse, in view of the very different regimes in operation in different States, it will not be appropriate for it to be too prescriptive about the way in which those regimes should operate (although it may, as it did both in Centrum För Rättvisa and in this case, identify those aspects of the regime which could be improved upon). Applying this approach to the Court’s supervisory jurisdiction in the present case (as it was in Centrum För Rättvisa), the Court should have given due weight to the fact that the domestic courts and authorities have subjected both the UK system as a whole as well as the individual complaints at issue to detailed and extensive scrutiny by express reference to the Convention standards and this Court’s case law and should have found that there was, here, no breach of Article 8 of the Convention.", "Post Scriptum 26. Since the adoption of this judgment on 3 July 2018, the IPT has handed down yet another judgment in relation to another, unrelated, aspect of the UK’s surveillance regime: Privacy International v Secretary of State for Foreign and Commonwealth Affairs (Rev 1) [2018] UKIPTrib IPT_15_110_CH (23 July 2018). For obvious reasons this judgment was not available for consideration by the Court when it reached its conclusions on the question of exhaustion of domestic remedies (and we have heard no submissions on it). That said, it seems to us that this careful and detailed judgment provides yet further support (if any was necessary) that, in principle, the IPT is an effective remedy for the purposes of Article 35 § 1 of the Convention which applicants will be required to have exhausted before this Court has jurisdiction to entertain their application. [1] As the United Kingdom is leaving the European Union in 2019, it granted royal assent to the Data Protection Act 2018 on 23 May 2018, which contains equivalent regulations and protections." ]

[ "SECOND SECTION CASE OF ALVES v. PORTUGAL (Application no. 34939/12) JUDGMENT STRASBOURG 28 January 2014 This judgment is final but it may be subject to editorial revision. In the case of Alves v. Portugal, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President,Paulo Pinto de Albuquerque,Helen Keller, judges,and Marialena Tsirli, Acting Deputy Section Registrar, Having deliberated in private on 7 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 34939/12) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Ms Maria do Sameiro Alves (“the applicant”), on 4 June 2012.", "2. The applicant was represented by Mr J. J. F. Alves, a lawyer practising in Matosinhos (Portugal). The Portuguese Government (“the Government”) were represented by their Agent, Ms M. F. Graça de Carvalho, Deputy-Attorney General. 3. On 17 October 2012 the application was communicated to the Government.", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1955 and lives in Porto. 5. On 31 May 2005 the applicant started criminal proceedings against several people before the Court of Fafe (domestic proceedings no. 310/05.0TAFAF), accusing them of illegally changing property boundaries.", "6. On 2 October 2006 the Public Prosecutor (Ministério Público) filed the case. The applicant requested a judicial investigation to be opened (abertura de instrução). 7. On 23 October 2006 the applicant sought to intervene in the proceedings as an assistant to the public prosecutor (assistente).", "8. On 20 June 2008 the applicant claimed damages under civil law against one of the defendants. 9. On 3 November 2008 the parties reached an agreement on the civil claim. On the same date the criminal proceedings ended with the withdrawal of the complaint by the applicant.", "10. On 22 May 2009 the applicant started enforcement proceedings for the execution of the agreement. 11. On 20 July 2009 the defendant contested the enforcement. The claim was accepted by the court on 4 December 2009.", "12. On 7 April 2011, after two appeals before the Guimarães court of Appeal and the Supreme Court of Justice, the latter court determined that the enforcement proceedings should continue. 13. On 9 September 2011 the court ordered the attachment (penhora). 14.", "On 30 October 2012 the parties reached an agreement and the enforcement proceedings ended. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. She also complained that she had not had an effective remedy in this respect.", "She relied on Articles 6 § 1, 13, 14, 17, 34, 41, 46 of the Convention and Article 1 of Protocol No. 1. The Court considers that the applicant’s complaints concerning the length of proceedings should be examined only from the standpoint of Articles 6 § 1 and 13 of the Convention, which read as follows in the relevant parts: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority...” 16. The Government contested the applicant’s argument. 17.", "The period to be taken into consideration began on 23 October 2006 when the applicant sought to intervene in the criminal proceedings as assistente and were brought to a conclusion on 30 October 2012, with the end of the enforcement proceedings. 18. The Court notes, however, that the criminal proceedings ended on 3 November 2008 whereas the enforcement proceedings started on 22 May 2009. 19. The Court observes that jurisdictions cannot be held responsible for the period between the end of the criminal proceedings and the beginning of the enforcement proceedings, which is beyond the control of domestic authorities (see Gomes Almeida Henriques Moura v. Portugal (dec.), no.", "43146/11, § 22, 12 March 2013). This period of time should be deducted from the overall length of proceedings which thus lasted five years, five months and fourteen days for three levels of jurisdiction. A. Admissibility 20. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1) Alleged violation of Article 6 § 1 of the Convention 21. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "22. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 23. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. 2) Alleged violation of Article 13 of the Convention 24. The Court recalls that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 for a case to be heard within a reasonable time (Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000‑XI). 25.", "Having regard to its case-law in the subject (Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008; Garcia Franco and Others v. Portugal, no. 9273/07, § 50, 22 June 2010) and the fact that the Government have not submitted any arguments which would require it to depart from these findings in the present case, the Court considers that the applicant had had no effective remedy against the excessive length of the proceedings. 26. Therefore, there has been a breach of Article 13.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 28. The applicant claimed 16,000 euros (EUR) in respect of non-pecuniary damage.", "29. The Government contested the claim, considering it excessive. 30. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards the applicant EUR 1,000 under that head.", "B. Costs and expenses 31. The applicant also claimed EUR 3,450 for the costs and expenses incurred before the domestic courts and before the Court. 32. The Government contested the claim.", "33. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 34. 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. FOR THESE REASONS, THE COURT,UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Articles 6 § 1 and 13 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliDragoljub PopovićActing Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF GRABIŃSKI v. POLAND (Application no. 43702/02) JUDGMENT STRASBOURG 17 October 2006 FINAL 17/01/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grabiński v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrG. Bonello,MrM.", "Pellonpää,MrK. Traja,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta, judges,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 26 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 43702/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Aleksander Grabiński (“the applicant”), on 15 November 2002. 2. The applicant was represented by Mr W. Hermeliński, a lawyer practising in Warsaw.", "The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. 3. On 18 October 2005 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1949 and lives in Warsaw. A. Background to the case 5. The applicant’s family owned a plot of land with a surface area of 1,454 sq.", "m. situated in the centre of Warsaw, at the junction of Jerusalem Avenue and Marszałkowska Street. The applicant is one of the heirs of the owners of that property. 6. By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (“the 1945 Decree”) the ownership of all private land was transferred to the City of Warsaw. 7.", "On 30 September 1948 the applicant’s family filed an application for the grant of the right of temporary ownership (własność czasowa) of the plot of land pursuant to section 7 of the 1945 Decree (“the 1948 application”). On 14 September 1953 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the application and ruled that, consequently, the ownership of all the buildings located on the plot of land at issue be transferred to the State. On 25 January 1954 the Minister of Municipal Administration (Minister Gospodarki Komunalnej) upheld that decision. 8. In the meantime, the Law of 20 March 1950 on the Local State Administration entered into force on 13 April 1950.", "According to section 32 § 2 of that Law, the ownership of all property previously held by the local governments was transferred to the State. 9. In 1955 the State constructed the Metropol Hotel on the part of the plot which was formerly owned by the applicant’s family. 10. On an unspecified date the plot of land formerly owned by the applicant’s family was divided into two separate parts.", "11. Following the re-establishment of the local government in Poland, on 27 May 1990 the ownership of the first part of the original plot of land was transferred to the City of Warsaw by operation of the law. That part, with a surface area of 818 sq. m., constituted a part of a larger plot no. 39 with a surface area of 4,163 sq.", "m. The second part of the plot with a surface area of 636 sq. m remained with the State and was administered by the Warsaw District Office (Starostwo Powiatu Warszawskiego). 12. It appears that in July 2002, subsequent to the entry into force of the Law of 15 March 2002 on the status of the Capital City of Warsaw, the ownership of the second part of the original plot was transferred to the City of Warsaw. 13.", "On 29 June 1993 the Board of the Union of Warsaw Municipalities (Zarząd Związku Dzielnic Gmin Warszawy) issued a decision declaring that as of 5 December 1990 the “Syrena” Warsaw Tourist Company was granted the right of perpetual use of the plot of land no. 39 with a surface area of 4163 sq. m located at no. 45 Jerusalem Avenue. On the strength of the same decision the ownership of the buildings attached to that plot, including the Metropol Hotel, was transferred to the “Syrena” company against the payment of a fee.", "On the relevant date the company was owned by the City of Warsaw. B. Proceedings concerning the grant of the right of perpetual use of land 14. On 1 October 1992 S.P., another heir of the applicant’s family and acting on their behalf, filed with the Minister of Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) an application for annulment of the administrative decisions refusing the grant of temporary ownership. On 24 March 1993 the Minister quashed the decisions of the Board of the Warsaw National Council of 14 September 1953 and the Minister of Municipal Administration of 25 January 1954.", "Consequently, the competent administrative authorities were required to rule on the 1948 application for the grant of the right of perpetual use, which replaced the former temporary ownership. The applicant and other heirs of the previous owners were, as their legal successors, the parties to the subsequent proceedings. 15. Following the above decision, on 14 July 1994 the Minister of Planning and Construction awarded the applicant and other heirs compensation in the amount of PLZ 12,764,569,000. It appears that that decision has not been enforced.", "16. On 29 April 1995 the Minister of Planning and Construction instituted ex officio proceedings with a view to having his earlier decision of 24 March 1993 annulled. On 9 July 1996 the Minister declared the decision of 24 March 1993 null and void. On 20 July 1996 the applicant and S.P. made an application to the President of the Office for Housing and Urban Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) for reconsideration (wniosek o ponowne rozpatrzenie sprawy) of the decision of 9 July 1996.", "On 28 February 1997 the President of that Office upheld the decision of 9 July 1996. The applicant appealed against that decision and the earlier decisions of the Minister of Planning and Construction to the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 15 May 1997 the Supreme Administrative Court ordered that the enforcement of the decision of 28 February 1997 be stayed. 17. On 11 December 1998 the Supreme Administrative Court quashed both contested decisions, considering that there were no grounds on which to hold that the decision of 24 March 1993 could be declared null and void.", "As a consequence of that judgment, the 1948 application for the grant of the right of perpetual use filed by the applicant’s family had yet to be examined. 18. Initially, the applicant was a party to two sets of proceedings concerning the grant of the right of perpetual use of land which were conducted separately before the Board of the City of Warsaw (subsequently the Mayor of Warsaw) and the Warsaw District Office. That situation stemmed from the fact that the plot of land formerly owned by the applicant’s family had been divided into two separate parts which were respectively owned by the City of Warsaw and the State. As from July 2002, following amendments to the relevant laws, the City of Warsaw became the sole owner of the entire plot of land in question and the relevant proceedings were conducted exclusively before the Mayor of Warsaw.", "19. On 11 June 1996 the Board of the City of Warsaw (Zarząd Miasta Stołecznego Warszawy) decided ex officio to stay the proceedings until the termination of the proceedings instituted by the Minister of Planning and Construction in 1995 (see paragraphs 16-17 above). The applicant appealed against that decision. On 29 August 1996 the Warsaw Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) quashed the decision of 11 June 1996. 20.", "On 19 August 1997 the applicant wrote a letter to the Board of the City of Warsaw, inquiring about the progress in the proceedings following the decision of the Board of Appeal of 29 August 1996. He demanded an explanation about the delays in the proceedings. 21. On 12 November 1997 the Board of the City of Warsaw decided to discontinue the proceedings, considering that they had become devoid of purpose. It observed that the 1948 application for the grant of the right of perpetual use had been already dismissed, and that the application for the annulment of the latter decision had failed.", "The applicant appealed against that decision. 22. On 24 March 1998 the Local Government Board of Appeal quashed the impugned decision and remitted the case for re-examination. 23. On 19 June 1998 the applicant filed with the Board of Appeal a complaint about the inactivity of the Board of the City of Warsaw.", "24. On 14 July 1998 the Board of the City of Warsaw stayed the proceedings pending the termination of the proceedings before the Supreme Administrative Court concerning an appeal against the decision of the President of the Office for Housing and Urban Development of 28 February 1997. 25. On 13 August 1998 the Warsaw Local Government Board of Appeal ordered the Board of the City of Warsaw to issue a decision in the case by 30 September 1998. 26.", "On 16 January 1999, following the Supreme Administrative Court’s judgment of 11 December 1998, the applicant requested the Mayor of Warsaw to grant him the right of perpetual use. 27. In January 1999 the Mayor of Warsaw began negotiations with the applicant and other heirs of the former owners with a view to renouncing their claims to the plot of land at issue in exchange for an alternative plot. On 23 March 1999 the applicant and other heirs accepted the Mayor’s proposal. However, on 29 April 1999 the Deputy Mayor informed them that he had to withdraw from the negotiations as there were grounds on which the 1948 application could be dismissed.", "28. On 1 June 1999 the Board of the City of Warsaw refused the application. It observed that the plot of land of specific surface and shape, which had been the subject of the application, was not in existence at the time of the issuing of the present decision. Moreover, it noted that on part of the plot of land formerly owned by the applicant’s family, the State had constructed the Metropol Hotel. Thus, it considered that it was not possible to delimit the plot of land which was the subject of the application.", "In addition, the Board of the City of Warsaw noted that the “Syrena” company had been granted the right of perpetual use of the plot of land which partly overlapped with the plot of land at issue by virtue of a decision of 29 June 1993. 29. On 21 June 1999 S.P., one of the heirs of the applicant’s family, lodged an appeal against the decision of the Board of the City of Warsaw. 30. On 10 February 2000 S.P.", "lodged with the Supreme Administrative Court a complaint about the inactivity of the Warsaw Local Government Board of Appeal. 31. On 1 June 2000 the Warsaw Local Government Board of Appeal upheld the Board of the City of Warsaw’s decision of 1 June 1999. 32. On 30 June 2000 S.P.", "lodged an appeal with the Supreme Administrative Court against that decision. 33. On 15 September 2000 the Supreme Administrative Court discontinued the proceedings on the complaint about the inactivity of the Warsaw Local Government Board of Appeal, given that the latter authority had issued its decision on 1 June 2000. 34. On 27 February 2002 the Supreme Administrative Court quashed the Board of Appeal’s decision of 1 June 2000 and the earlier decision of the Board of the City of Warsaw.", "It considered that section 7 of the 1945 Decree laid down two requirements which had to be met in order to grant the right of perpetual use of land, i.e. the filing of the application in time and the compatibility of the intended use of the land with the local development plan. The Supreme Administrative Court observed that the relevant application had been lodged in time. However, the administrative authorities had not at all examined the second requirement laid down in the 1945 Decree, but had instead based their decisions on grounds which were not provided in the relevant law. Lastly, the Supreme Administrative Court instructed the administrative authorities to examine the heirs’ intentions as to the use of the land at issue.", "It further emphasised that if the intended use was compatible with the local development plan, the administrative authorities were under an obligation to grant the application. 35. It appears that in July 2002, subsequent to the entry into force of the Law of 15 March 2002 on the status of the Capital City of Warsaw, the ownership of the second part of the plot formerly owned by the applicant’s family was transferred to the City of Warsaw. Consequently, the proceedings concerning the grant of the right of perpetual use in respect of the entire property of the applicant’s family were conducted before the Mayor of Warsaw. 36.", "On 13 August 2002 the Board of the City of Warsaw informed the applicant and other heirs that due to the complex nature of the case a decision would be issued by 30 November 2002. 37. On 25 April 2003 the applicant lodged with the Warsaw Local Government Board of Appeal a complaint about the inactivity of the Board of the City of Warsaw. 38. On 30 May 2003 the applicant informed the Board that he intended to use the plot of land at issue in accordance with the local development plan.", "39. On 9 December 2003 the Mayor of Warsaw, who in the meantime had assumed the competences of the Board of the City of Warsaw, issued his decision in the case. He refused the application, considering that the use of the plot by the heirs of the former owners would not be compatible with the local development plan adopted on 9 February 1993. In particular, the Mayor found that one part of the plot at issue was designated partly for walkways and green areas, and partly for the junction of Jerusalem Avenue and Marszałkowska Street which was an important area for public transport in the whole city centre. In respect of the other part of the plot at issue, the Mayor considered that the Metropol Hotel stood on it and that it was not feasible to detach from the existing larger plot a part which was owned by the applicant’s family.", "He also had regard to section 31 of the Land Administration Act (ustawa o gospodarce nieruchomościami) which provided that in the case of a plot of land with a building situated on it, the grant of the right of perpetual use of the plot was to be effected with the simultaneous acquisition of the buildings located on the plot. However, the building of the Metropol Hotel was owned by the “Syrena” company and could not be split so as to reflect the borders of the estate formerly owned by the applicant’s family. Furthermore, the application could not be granted because the right of perpetual use of the plot of land which partly overlapped with the plot at issue, had been awarded to the “Syrena” company on the strength of the decision of 29 June 1993. 40. On 24 December 2003 the applicant appealed.", "41. On 24 February 2004 the applicant lodged with the Supreme Administrative Court a complaint about the inactivity of the Warsaw Local Government Board of Appeal. 42. On 12 May 2004 the Local Government Board of Appeal quashed the Mayor’s decision of 9 December 2003 and remitted the case. On 9 June 2004 S.P.", "requested the Mayor to accelerate the proceedings. 43. On 25 June 2004 the Supreme Administrative Court discontinued the proceedings on the complaint about the inactivity of the Warsaw Local Government Board of Appeal, given that the latter authority had issued its decision on 12 May 2004. 44. It appears that on an unspecified date the Mayor of Warsaw stayed the proceedings pending the conclusion of the administrative proceedings concerning the grant of the right of perpetual use of land for the benefit of the “Syrena” company (see paragraphs 54-59 below).", "It appears that the proceedings are pending. C. Proceedings conducted before the Warsaw District Office up to July 2002 which concerned the grant of the right of perpetual use of the plot of land owned by the State 45. On 5 February 1999 the applicant requested the Warsaw District Office to grant him the right of perpetual use of the plot of land owned by the State Treasury. On 11 March 1999 he lodged with the Warsaw Governor (Wojewoda Warszawski) a complaint about the inactivity of the Warsaw District Office. 46.", "On 23 March 1999 the Warsaw District Office asked the Board of the City of Warsaw to provide the relevant documents concerning the status of the property at issue. On 10 May 1999 the relevant documents were submitted to the District Office. On 25 May and 16 June 1999 the District Office requested the Warsaw-Centre Municipality to submit some additional documents. 47. On 9 July 1999 the applicant filed with the Warsaw Governor a second complaint about the inactivity of the District Office.", "On 9 August 1999 the District Office requested the Warsaw-Centre Municipality to provide information relating to the use of the plot of land at issue as provided in the local development plan. The requested information was submitted on 17 August 1999. 48. On 30 August 1999 the Warsaw Governor ordered the Warsaw District Office to issue a decision in the applicant’s case within one month. On 8 October 1999 the District Office informed the applicant that due to the complex nature of the case a decision would be issued by 15 January 2000.", "49. On 4 January 2000 the Warsaw District Office refused to grant the right of perpetual use in respect of the plot owned by the State Treasury, considering that that plot had been designated in the local development plan for public use. The applicant appealed against that decision. 50. On 7 September 2000 the Warsaw Governor upheld the decision of the Warsaw District Office.", "S.P. lodged an appeal against the decision of the Governor with the Supreme Administrative Court. 51. On 12 March 2002 the Supreme Administrative Court quashed the Warsaw Governor’s decision of 7 September 2000 and the earlier decision of the Warsaw District Office as they had been issued in breach of section 7 of the 1945 Decree. It considered that the use of the plot of land at issue by the successors of the former owners would not be incompatible with the local development plan.", "52. On 7 June 2002 the Warsaw District Office informed the applicant that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to undertake further examination of the application. 53. It appears that in July 2002 the ownership of the plot held by the State was transferred to the City of Warsaw by operation of the law. Consequently, the proceedings concerning the grant of the right of perpetual use of land in respect of the entire property of the applicant’s family were conducted before the Mayor of Warsaw (see paragraphs 35-44 above).", "D. Proceedings concerning the grant of the right of perpetual use of land for the benefit of the “Syrena” company 54. On 10 May 1996 S.P., one of the heirs, filed with the Board of the City of Warsaw an objection against the auction for the sale of shares in the “Syrena” company. 55. On 17 September 1996 the applicant made an application to the Warsaw Local Government Board of Appeal for annulment of the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993 (see paragraph 13 above). On 31 October 1996 the Board of Appeal refused to institute the proceedings.", "On 20 November 1996 the applicant filed an application for reconsideration of that decision. On 30 December 1996 the Board of Appeal decided to stay the proceedings until the termination of the proceedings pending before the Minister of Planning and Construction (see paragraphs 16-17 above). On 7 October 1997 the Board of Appeal quashed its earlier decision of 31 October 1996. On 26 November 1997 it refused that application. The applicant filed an application for reconsideration of the matter.", "On 17 September 1998 the Board of Appeal quashed its earlier decision and refused to institute proceedings for the annulment. The applicant appealed against that decision to the Supreme Administrative Court. 56. On 19 November 1998 the Supreme Administrative Court stayed the proceedings pending the termination of the proceedings concerning the application for annulment of the Minister of Planning and Construction’s decision of 24 March 1993. The proceedings were resumed on 27 September 2002.", "On 11 December 2002 the Supreme Administrative Court quashed the decision of the Board of Appeal of 17 September 1998 on procedural grounds. Consequently, the Board of Appeal had to examine the applicant’s application for annulment again. 57. On 20 June and 20 December 2003 the applicant requested the Board of Appeal to expedite the proceedings. 58.", "On 10 December 2003 the Board of Appeal quashed its earlier decision of 26 November 1997 and declared null and void the decision of the Board of the Union of Warsaw Municipalities of 29 June 1993 granting the right of perpetual use of the plot of land no. 39 to the “Syrena” company. It considered that the decision of 29 June 1993 had been issued in a flagrant violation of the rights of the heirs of the former owners, as their application for the grant of the right of perpetual use was pending at the material time. It further observed that the heirs’ claims to the plot of land formerly owned by their family had to be examined prior to the decision on the use of land by the “Syrena” company. 59.", "On 5 July 2004 the Local Government Board of Appeal reopened the proceedings at the request of the “Syrena” company. On 9 December 2004 it refused the “Syrena” company’s request to quash its earlier decision of 10 December 2003. That decision was upheld on appeal on 18 April 2005. It appears that those proceedings are pending. II.", "RELEVANT DOMESTIC LAW A. Inactivity of the administrative authorities 60. Article 35 of the Code of Administrative Procedure lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay.", "If need be, the authority may order that measures be applied to prevent such delays in the future. 61. On 1 October 1995 the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force. According to the provisions of section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision. Section 26 of the Law provides: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” 62.", "Pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question. 63. Under the same provision, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. Such a claim should be first lodged with that authority.", "A decision on the compensation claim should be taken by that administrative authority within three months. If the authority concerned fails to give a ruling in this respect within this time-limit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court. 64. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Procedure before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2(8) of the 2002 Act contains provisions analogous to section 17 of the 1995 Act.", "A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law. Section 154 provides for a possibility of lodging a compensation claim against the administrative authority concerned if a party to the proceedings sustained damage as a result of a failure of that authority to act in compliance with the judgment of the administrative court. 65. Article 417¹ § 3 of the Civil Code entered into force on 1 September 2004.", "It provides for a possibility of lodging a compensation claim for damages resulting from the unreasonable length of administrative proceedings after it was formally determined in the relevant proceedings that there had been an unlawful failure to issue an administrative decision within the relevant time-limits. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 66. The applicant complained that the length of the proceedings concerning the grant of the right of perpetual use of land had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 67. The Government contested that argument.", "68. The Court notes that the proceedings commenced on 1 October 1992, when S.P., acting on behalf of the applicant’s family, filed an application for annulment of the administrative decisions refusing the grant of temporary ownership. However, the period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question has not yet ended.", "It has thus lasted 13 years and over 4 months. A. Admissibility 1. Applicability of Article 6 § 1 of the Convention 69. The Court recalls that it has already determined that Article 6 § 1 is applicable to proceedings concerning the grant of the right of perpetual use of land (cf. Potocka and Others v. Poland (dec.), no.", "33776/96, 6 April 2000; Szenk v. Poland (dec.), no. 67979/01, 1 June 2004; Koss v. Poland, no. 52495/99, § 29, 28 March 2006). 2. The Government’s plea on non-exhaustion of domestic remedies 70.", "The Government submitted that the applicant had not exhausted remedies available under Polish law. Firstly, they submitted that the applicant could have requested the Supreme Administrative Court to impose a fine on the Board of the City of Warsaw for the non-enforcement of that court’s judgment of 11 December 1998. 71. However, the Court notes that the Supreme Administrative Court in its judgment of 11 December 1998 quashed two decisions issued by the Minister of Planning and Construction and the President of the Office for Housing and Urban Development relating to the annulment of the original decision refusing the grant of temporary ownership. It further notes that the judgment in issue was not directed against the Board of the City of Warsaw and that that authority was not a party to the relevant proceedings before the administrative court.", "It observes that the judgment of 11 December 1998 was favourable to the applicant and paved the way for the Board of the City of Warsaw to examine the merits of the 1948 application for the grant of the perpetual use of land. In those circumstances, the Court cannot see how the applicant’s failure to request the imposition of a fine on the Board of the City of Warsaw could have had any practical effect on the proceedings at issue. It follows that this part of the Government’s objection must be rejected. 72. Secondly, the Government argued that the applicant had failed to lodge a compensation claim with a civil court in order to seek redress for the alleged damage which had resulted from the inactivity of the Board of the City of Warsaw (subsequently the Mayor of Warsaw).", "They relied on Article 417¹ § 3 of the Civil Code as amended by the Law of 17 June 2004 on Amendments to the Civil Code and Some Other Laws. 73. However, the Court notes that the provision relied on by the Government entered into force on 1 September 2004. It also observes that prior to that date the applicant resorted to remedies designed to accelerate the process of obtaining an administrative decision, such as an appeal under Article 37 of the Code of Administrative Procedure and a complaint lodged with the Supreme Administrative Court about the inactivity of the administrative authorities. 74.", "The Court further observes that according to Article 417¹ § 3 of the Civil Code no claim for damages resulting from the unreasonable length of administrative proceedings may arise unless it was formally determined that there had been an unlawful failure to issue an administrative decision within the relevant time-limits. The Court also notes that the Government provided no evidence of any judicial practice to show that a claim for compensation based on Article 417¹ § 3 of the Civil Code was an effective remedy and have thus failed to substantiate their contention. It follows that this part of the Government’s objection must be rejected. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 75.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 76. The Government refrained from expressing their opinion on the merits of the applicant’s case. At the same time, they pleaded the particular complexity of the case which had involved complicated legal and factual issues. They further submitted that continuous changes on the part of the heirs of the applicant’s family during the course of the proceedings had contributed to the delays. The Government also maintained that the authorities had shown due diligence in the proceedings.", "77. The applicant argued that the “reasonable time” requirement laid down in Article 6 § 1 was not complied with, referring to the long periods of unexplained inactivity on the part of the administrative authorities and the Supreme Administrative Court. He also contested the Government’s submission that the proceedings in his case had been particularly complex. Lastly, the applicant argued that his conduct had not caused any discernible delays in the proceedings. He submitted that between 1993 and 2004 the list of the parties to the proceedings on the applicant’s side had changed only once and that had had no impact on the proceedings.", "2. The Court’s assessment 78. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Beller v. Poland, no. 51837/99, §§ 68-70, 1 February 2005).", "79. The Court observes that the case involved a certain degree of complexity on account of the legal and factual issues arising in cases concerning land in Warsaw (Beller v. Poland, cited above, § 70; Koss v. Poland, cited above, § 34). However, it considers that this in itself cannot justify the overall length of the proceedings. 80. As regards the conduct of the applicant, the Court, having regard to the available evidence, does not find it established that the applicant contributed to the delays in the proceedings.", "81. As regards the conduct of the relevant authorities, the Court notes that there were frequent periods of inactivity. By way of example, the Court observes that there was a period of fourteen months of inactivity between 29 April 1995 when the Minister of Planning and Construction instituted ex officio proceedings with a view to having his earlier decision annulled and 9 July 1996, when he issued his decision. Subsequently, there was a period of twenty-one months of inactivity between 28 February 1997 when the President of the Office for Housing and Urban Development issued his decision and 11 December 1998 when the Supreme Administrative Court gave judgment. The Court observes that there were other unexplained periods of inactivity in the subsequent proceedings, such as a period of eleven months between 30 June 1999 when the appeal was lodged against the Board of the City of Warsaw’s decision issued on 1 June 1999 and 1 June 2000 when the Local Government Board of Appeal upheld that decision.", "The Court further notes that there was a period of nearly twenty months of inactivity between 30 June 2000 and 27 February 2002 in the proceedings before the Supreme Administrative Court, following an appeal against the Board of Appeal’s decision of 1 June 2000. 82. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s case was not heard within a reasonable time. There has accordingly been a breach of Article 6 § 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 84. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. 85.", "The Government contested these claims. 86. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant certainly suffered non-pecuniary damage, such as distress and frustration on account of the protracted length of the proceedings, which cannot be sufficiently compensated by the above finding of a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant a total sum of 10,000 euros (“EUR”) under that head.", "B. Costs and expenses 87. The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic authorities and EUR 2,500 for those incurred before the Court. 88. The Government contested these claims.", "89. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings for lack of relevant supporting documents. On the other hand, it considers it reasonable to award the sum of EUR 1,000 for the work of the applicant’s representative in the proceedings before the Court. C. Default interest 90.", "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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "FIRST SECTION CASE OF M.A. v. AUSTRIA (Application no. 4097/13) JUDGMENT STRASBOURG 15 January 2015 FINAL 15/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of M.A.", "v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Julia Laffranque,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 16 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4097/13) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr M.A. (“the applicant”), on 14 January 2013. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).", "2. The applicant was represented by Mrs A. Mascia, a lawyer practising in Strasbourg. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3. The applicant alleged that the Austrian authorities had failed to ensure his daughter’s return to Italy, thus violating his right to respect for his family life.", "4. On 18 June 2013 the application was communicated to the Government. 5. The Italian Government made use of their right to intervene under Article 36 § 1 of the Convention. They were represented by their Agent, Ms E. Spatafora.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1968 and lives in Vittorio Veneto. 7. The applicant entered into a relationship with D.P., an Austrian national, and lived together with her in Vittorio Veneto.", "Their daughter, who is an Italian and Austrian national, was born in December 2006. Under Italian law the applicant and D.P. had joint custody of her. 8. The relationship between the applicant and D.P.", "deteriorated and the latter left the family home on 31 January 2008, taking their daughter with her. 9. The applicant applied to the Venice Youth Court (tribunale per i minorenni di Venezia) for an award of sole custody of the child and asked the court to issue a travel ban prohibiting her from leaving Italy without his consent. 10. On 8 February 2008 the Venice Youth Court issued a travel ban in respect of the applicant’s daughter.", "On the same day the applicant learned that D.P. had left Italy with the child and had travelled to Austria, where she intended to take up residence. 11. On 23 May 2008 the Venice Youth Court lifted the travel ban in respect of the applicant’s daughter, granted preliminary joint custody of the child to both parents, and authorised her to reside with her mother in Austria, having regard to her young age and close relationship with her mother. It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody.", "In addition, the court granted the applicant access rights twice a month in a neutral location, noting that the meetings should alternate between Italy and Austria and that the dates and arrangements should be agreed with the expert. 12. According to the applicant, D.P. brought their daughter to Italy only once. Visits took place in Austria, although D.P.", "did not facilitate their organisation. At a later date visits ceased, allegedly due to D.P.’s obstructive behaviour. In a report of 15 May 2009 the expert noted that she was not in a position to evaluate the applicant’s ability to take care of his daughter. 13. According to the Government the applicant met his daughter fifteen times in Austria, where supervised visits took place between October 2008 and June 2009.", "Subsequently, he refused to travel to Austria without giving any reasons. A. Proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and proceedings in Austria concerning custody of the applicant’s daughter 14. The applicant applied for assistance to secure his daughter’s return under the Hague Convention. His application was forwarded via the respective central authorities in Italy and Austria to the Leoben District Court (Bezirksgericht), where proceedings began on 19 June 2008.", "Subsequently, the court appointed an expert. 15. On 3 July 2008, the Leoben District Court dismissed the applicant’s application for the return of the child under the Hague Convention. Referring to the expert’s opinion and having regard to the very young age of the child, the court found that her return would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention. 16.", "On 1 September 2008, the Leoben Regional Court (Landes­gericht) set aside that decision because the applicant had not been duly heard in the proceedings. 17. On 21 November 2008 the Leoben District Court, having heard the applicant, again dismissed his application for his daughter’s return, referring to the Venice Youth Court’s decision of 23 May 2008. 18. On 7 January 2009 the Leoben Regional Court dismissed the applicant’s appeal, finding that returning the child to him and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article 13(b) of the Hague Convention.", "19. Meanwhile, in March 2009 D.P. brought proceedings before the Judenburg District Court, seeking an award of sole custody of the child. 20. On 26 May 2009 the Judenburg District Court held that it had jurisdiction with regard to custody, access and maintenance issues in respect of the child by virtue of Article 15(5) of EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”).", "21. On 25 August 2009 the same court made a preliminary award of sole custody to D.P., referring to the child’s close links with Austria and the risk of danger to her well-being upon a possible return to Italy. 22. On 8 March 2010 the Judenburg District Court awarded D.P. sole custody of the child.", "B. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court’s judgment of 10 July 2009 23. In the meantime, on 9 April 2009 the applicant made an application to the Venice Youth Court for his daughter’s return under Article 11(8) of the Brussels IIa Regulation. 24. In a judgment of 10 July 2009 the Venice Youth Court, having held a hearing, ordered the child’s return to Italy.", "The child would live with her mother, should the latter decide to return to Italy with her. In that event the Vittorio Veneto social services department was required to provide them with accommodation. In addition, a programme for the exercise of the applicant’s access rights would have to be established. If the child’s mother did not wish to return to Italy, the child was to reside with the applicant. 25.", "The Venice Youth Court found that it remained competent to deal with the case, as the Judenburg District Court had wrongly determined its jurisdiction under Article 15(5) of the Brussels IIa Regulation. It noted that its previous decision of 23 May 2008 had been designed as a temporary measure in order to re-establish contact between the applicant and his daughter through access rights and to obtain a basis for an expert opinion for the decision on custody of the child. However, the child’s mother had failed to co-operate with the appointed expert and had refused a programme of access rights for the applicant prepared by the expert. The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child’s best interests in a satisfactory manner. 26.", "On 21 July 2009 the Venice Youth Court issued a certificate of enforceability under Article 42 of the Brussels IIa Regulation. 27. On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009. He was represented by counsel in these and all subsequent proceedings. 28.", "On 12 November 2009 the Leoben District Court dismissed the applicant’s request for enforcement of the Venice Youth Court’s order to return the child. It noted that the child’s mother was not willing to return to Italy with her. However, the child’s return without her mother would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention. 29. On 20 January 2010 the Leoben Regional Court quashed that decision and granted the applicant’s request for enforcement.", "30. The Leoben Regional Court noted that under Article 11(8) of the Brussels IIa Regulation a judgment refusing return under Article 13 of the Hague Convention was irrelevant where the court which was competent pursuant to the Brussels IIa Regulation had ordered the child’s return in a subsequent judgment. It confirmed that the Venice Youth Court had been competent to issue the judgment of 10 July 2009, as D.P. had unlawfully removed the child from Italy and the applicant had immediately requested her return. Moreover, the applicant had submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation in respect of the judgment at issue.", "The Austrian courts therefore had to recognise the judgment and to enforce it. They were not to establish anew whether the child’s return would be contrary to her best interests. In any event, there was no indication that the circumstances had changed since the Venice Youth Court had given its judgment. It was for the court of first instance to order appropriate measures of enforcement. 31.", "D.P. lodged an appeal on points of law with the Supreme Court (Oberster Gerichtshof) on 16 February 2010. 32. On 20 April 2010 the Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (CJEU), submitting a number of questions concerning the application of the Brussels IIa Regulation. 33.", "On 1 July 2010, the CJEU issued a preliminary ruling (C-211/10 PPU) confirming the jurisdiction of the Italian courts in the case and the enforceability of the Venice Youth Court’s judgment of 10 July 2009. It found, in particular, that: (1) a provisional measure [such as the one issued by the Venice Youth Court in 2008] did not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed; (2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to custody of the child; (3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which made a provisional award of custody could not preclude enforcement of a certified judgment previously delivered by the court which had jurisdiction in the Member State of origin and had ordered the return of the child; and (4) enforcement of a certified judgment [ordering the child’s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin, which also had to hear any application to suspend the enforcement of its judgment. 34. On 13 July 2010 the Supreme Court dismissed D.P.’s appeal on points of law.", "It noted that according to the CJEU’s ruling the Austrian courts’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to conduct any review of the merits of the decision. If D.P. asserted that the circumstances had changed since the Venice Youth Court had given its judgment, she had to apply to that court, which would also be competent to grant such an application suspensive effect. 35. The Supreme Court noted that it was now for the first-instance court to enforce the Venice Youth Court’s judgment.", "In doing so, it had to take into account the fact that the Venice Youth Court had in the first place envisaged that the child should reside with her mother upon her return to Italy and had ordered the Vittorio Veneto social services department to make accommodation available for them. The first-instance court would therefore have to ask the applicant to submit appropriate evidence, in particular confirmation from the Venice Youth Court or Vittorio Veneto municipal council, that accommodation was indeed available. The first-instance court would then have to order the mother to return with the child within two weeks. Should she fail to comply within that time-limit, the first-instance court would, upon the applicant’s request, have to order coercive measures for the child’s return, while still giving the mother the opportunity to avoid such drastic measures by voluntarily returning to Italy with the child. 36.", "On 31 August 2010 the Venice Youth Court refused to grant an application by D.P. for the enforcement of its judgment of 10 July 2009 to be stayed. Referring to that decision, the applicant asked the Leoben District Court to order his daughter’s return to Italy. 37. The applicant claimed that he had offered to make accommodation (apparently a flat belonging to him) available to D.P.", "and his daughter, but that the Leoben District Court had found that this did not fulfil the conditions set by the Venice Youth Court in its judgment of 10 July 2009. 38. On 17 February 2011 the Leoben District Court asked the applicant to submit evidence that appropriate accommodation would be made available to his daughter and her mother by the Vittorio Veneto social services department, as required by the Venice Youth Court’s judgment of 10 July 2009. 39. By letter of 22 March 2011 the Austrian Federal Ministry of Justice, as Central Authority, informed its Italian counterpart accordingly and also noted that to date the condition had not been complied with.", "A similar letter was sent to the Italian Central Authority on 27 May 2011. Three further letters with similar content were sent to the Italian Central Authority prior to November 2011. C. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court’s judgment of 23 November 2011 40. By a judgment of 23 November 2011 the Venice Youth Court withdrew D.P.’s custody rights and awarded the applicant sole custody of the child. It further ordered the child’s return to Italy to reside with the applicant in Vittorio Veneto.", "The court ordered the Vittorio Veneto social services department – if need be in co-operation with the neuropsychiatry department of the local health authority – to ensure that contact between the child and her mother was maintained and to give the child linguistic and educational support in order to assist her integration into her new family and social environment. 41. The Venice Youth Court referred to its decision of 23 May 2008, which had been aimed at preserving the child’s relationship with her mother while re-establishing contact with the applicant, noting that such attempts had failed owing to a lack of co-operation from the mother. It had therefore ordered the child’s return to Italy in its judgment of 10 July 2009. It further considered that D.P.", "had unlawfully removed the child to Austria and had subsequently deprived her of contact with the applicant without good reason. She had thus acted contrary to the child’s best interests. It therefore found that sole custody was to be awarded to the applicant. Given that to date any attempts to establish contact step by step had failed, his daughter was to reside with him immediately. The court noted that this would entail a difficult transition for her, but considered that the damage caused by growing up without her father would weigh even heavier.", "The court considered that the social services department would have to give the child educational and linguistic support to help her settle in her new family and social environment and to maintain contact with her mother. Finally, the court considered that the child’s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation, which in turn referred to Article 13 of the Hague Convention. 42. D.P. did not appeal against this judgment.", "43. On 19 March 2012 the applicant notified the Leoben District Court of the Venice Youth Court’s judgment of 23 November 2011. He also submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation. 44. On 3 May 2012 the Leoben District Court dismissed the applicant’s request for enforcement of the Venice Youth Court’s order for the child’s return.", "Referring to the Supreme Court’s decision of 13 July 2010, it considered that he had failed to submit proof that appropriate accommodation would be made available for the child and her mother upon their return. 45. The applicant appealed. He submitted, in particular, that the Venice Youth Court’s judgment of 23 November 2011 had granted him sole custody of the child and had ordered her return to Italy, where she was to reside with him. 46.", "On 15 June 2012 the Leoben Regional Court granted the applicant’s appeal and ordered D.P. to hand the child over to the applicant within fourteen days, noting that enforcement measures would be taken in case of failure to comply. 47. The Regional Court found that the condition that appropriate accommodation be made available to the child and the mother was no longer valid: in its judgment of 23 November 2011 the Venice Youth Court had awarded sole custody of the child to the applicant and had ordered that she return to reside with him. The applicant had submitted that judgment together with a certificate of enforceability under Article 42 of the Brussels IIa Regulation.", "The mother’s obligation to return the child to the applicant thus resulted directly from the Venice Youth Court’s judgment of 23 November 2011. Finally, the Leoben Regional Court noted that the award of custody made by the Judenburg District Court on 8 March 2010 could not prevent the enforcement of the Venice Youth Court’s judgment. The latter had retained its competence to rule on custody matters, as D.P. had unlawfully removed the child to Austria and the applicant had made a timely request for her return under Article 10 of the Brussels IIa Regulation. 48.", "D.P. did not comply with the return order. She lodged an extraordinary appeal on points of law with the Supreme Court. 49. On 13 September 2012 the Supreme Court rejected D.P.’s extraordinary appeal on points of law, as the case did not raise an important legal issue.", "It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order. The CJEU had clarified that where there was a certificate of enforceability under Article 42(1) of the Brussels IIa Regulation, the requested court had to proceed with the enforcement of the main judgment. Any questions relating to the merits of the return decision, in particular the question whether the requirements for ordering a return had been met, had to be raised before the courts of the requesting State in accordance with the laws of that State. Consequently, any change in circumstances affecting the issue of whether a return would endanger the child’s well-being had to be raised before the competent court of the requesting State.", "D.P.’s argument that the child’s return would lead to serious harm for her and entail a violation of Article 8 of the Convention was therefore not relevant in the proceedings before the Austrian courts, but rather had to be raised before the competent Italian courts. 50. On 1 October 2012 the Leoben District Court held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court, apparently on account of a change of residence by D.P. and the child. 51.", "On 4 October 2012 the Wiener Neustadt District Court issued a decision on the next steps to be taken in the enforcement proceedings. The judge noted, in particular, that a continuation of the path chosen by both parents, namely the use of the child in the conflict between them, would lead to the child being traumatised, especially if the parents’ unbending position eventually led to an enforcement of the return order by coercive measures as a last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore proposed that a hearing in the presence of both parents be held in order to seek a constructive solution. Accordingly, he asked both parents to indicate within two weeks whether they were ready to take part in the proposed hearing.", "The judge further noted that if the parents were not willing to take part in the hearing, the enforced return of the child would be arranged. In this connection, the judge stated that any trauma suffered by the child because of such enforcement would then have to be laid at the door of the parents. Moreover, the applicant would be required to find a way to deal with the trauma caused to the child. 52. On 16 October 2012 the applicant informed the Wiener Neustadt District Court that he was not ready to take part in a hearing with the child’s mother, but wanted to arrange the return of the child with the least traumatic impact possible.", "He therefore suggested that he come to Austria with his parents to pick up the child or, alternatively, that D.P. travel to Italy with the child to hand her over. He therefore asked D.P. to either set a pick-up date in Austria or to inform him of a date when she would bring the child to Italy. 53.", "On 23 October 2012 D.P. informed the District Court that she was ready to take part in the proposed hearing. She also informed the court that she had appealed against the decision which had transferred the case from the Leoben District Court to the Wiener Neustadt District Court. Consequently, the decision establishing the latter court’s competence had not become final. She therefore asked the court to await the decision on her appeal before taking any further steps.", "54. In the related case brought before the European Court of Human Rights by the mother of the child (Povse v. Austria (dec.), no. 3890/11, 18 June 2013), the Court granted a request for interim measures on 4 December 2012. It asked the Government to stay the child’s return to Italy. Having obtained information from the Austrian and Italian Governments and from the applicants, the Court lifted the interim measure on 18 February 2013.", "55. On 4 April 2013 the applicant’s counsel requested that the enforcement proceedings be continued. 56. On 25 April 2013 the Wiener Neustadt District Court decided to continue the enforcement proceedings and, on 30 April 2013, requested that the parties submit their views within two weeks in order to reach a comprehensive solution for the benefit of the child. According to the Government, the applicant refused to contribute to that process.", "57. In a decision of 20 May 2013 the Wiener Neustadt District Court ordered D.P. to hand over the child to the applicant by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied. The District Court noted that it was for D.P. to choose whether she would accompany her daughter to Italy or whether she would set a date within that timeframe for the applicant to pick up the child in Austria.", "Furthermore, the District Court, referring to the Supreme Court’s judgment of 13 September 2012, repeated that it was for the Italian courts to examine any issues relating to the child’s well-being. It noted finally that the deadline for handing over the child had been set in such a way as to allow her to finish the school year in Austria. 58. As D.P. did not comply with the order to hand over the child, an attempt to enforce it by means of coercive measures was made in the early hours of 24 July 2013 without prior notice.", "The attempt, in which the judge, trained bailiffs and police officers participated, was unsuccessful, as D.P. and the child were not present at their place of residence. The applicant had been informed of the planned enforcement and was present. 59. On 9 August 2013 D.P.", "asked the Venice Youth Court to stay the enforcement of its judgment of 23 November 2011. Furthermore, she sought an award of sole custody in her favour. She alleged that she had not been adequately heard in the initial proceedings. Furthermore, she asserted that there had been a change of circumstances, in that her daughter was fully integrated into her living environment in Austria and had formed bonds with D.P.’s family, consisting of her mother, the latter’s partner and her younger half-brother. There had been no contact between father and child for a lengthy period and the child had no knowledge of Italian.", "D.P. submitted an expert opinion, according to which the child’s return to her father through the use of coercive measures would cause serious harm to the child. 60. On 14 August 2013 the Wiener Neustadt District Court dismissed D.P.’s application for a stay of enforcement, but decided to provisionally refrain from returning the child until the Venice Youth Court gave a decision on D.P.’s action before it. 61.", "In his observations of 18 October 2013 the applicant claimed that he had not yet been duly notified of the fresh proceedings before the Venice Youth Court. The Government, in their submissions of 18 November 2013, stated that the proceedings were pending before the Italian courts and that the parties had been notified of the dates of hearings. Moreover, the Government submitted that the applicant had not taken advantage of numerous opportunities to re-establish communication between himself and his daughter. 62. According to information provided by the applicant in a letter of 17 November 2014, the Venice Youth Court held hearings in January and April 2014 in the presence of both parents and fixed a series of meetings between the applicant and his daughter.", "A number of meetings took place between February and May at intervals of three weeks in Austria and then in June in Italy. The mother of the child was present at the meetings and on some occasions also her partner. The applicant alleges that on two occasions the mother’s partner threatened him and disrupted the meetings. According to the applicant meetings which had been scheduled for July and August 2014 did not take place as the mother refused to bring the child to Italy. The Venice Youth Court held a further hearing on 29 September 2014 and scheduled further meetings in Italy between the applicant and his daughter for December 2014 and January 2015.", "The proceedings before the Italian courts are still pending. II. RELEVANT DOMESTIC LAW AND PRACTICE 63. The enforcement of child custody decisions is based on section 110 of the Non-Contentious Proceedings Act (Außerstreitgesetz). This provision also applies to the enforcement of decisions under the Hague Convention and, according to the Supreme Court’s case-law, to the enforcement of return orders under Article 11(8) of the Brussels IIa Regulation.", "64. Section 110(1), taken in conjunction with section 79(2), provides for the imposition of the following sanctions: fines to enforce actions that need not be taken in person, imprisonment for contempt of court for a duration of up to one year to enforce actions that are to be performed in person, compulsory attendance, seizure of documents and, finally, appointment of a curator ad litem. As more lenient measures, the court may also reprimand a party or threaten to take coercive measures. 65. Section 110(2) allows for the use of reasonable direct coercion.", "Direct coercion may only be applied by court organs and is in practice entrusted to specially trained bailiffs. According to the Supreme Court’s case-law, the use of direct coercion, meaning the physical taking away of the child, is possible as a measure of last resort for the implementation of a return order. However, since the use of direct coercion constitutes a massive interference with the child’s personal circumstances, a particularly careful approach should be adopted when removing a minor from his or her previous living environment (judgment of 17 February 2010, 2 Ob 8/10f). 66. Section 110(3) provides that the court may refrain from continuing with enforcement proceedings if and as long as they constitute a risk for the well-being of the minor.", "The Government argued that in accordance with the CJEU ruling of 1 July 2010, the courts were not entitled to rely on section 110(3) of the Non-Contentious Proceedings Act to review a return order on the merits or to examine whether there were reasons for granting a stay of enforcement, even if it was alleged that there had been a change in circumstances, as it was exclusively within the competence of the courts of the State of origin to rule on an application for a stay of a return order given under Article 11(8) of the Brussels IIa Regulation. In the context of the enforcement of a return order under that Regulation, the scope of application of section 110(3) of the Non-Contentious Proceedings Act was limited to cases in which the act of enforcement in itself endangered the minor’s well-being because of an acute danger to the child arising during the removal (for instance on account of strong resistance by or acute health problems of the minor concerned). III. RELEVANT INTERNATIONAL LAW AND EUROPEAN UNION LAW 1. The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 67.", "The relevant provisions of the Hague Convention read as follows: Article 1 “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Article 3 “The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 4 “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.", "The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: ... (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” 2. Council Regulation (EC) No.", "2201/2003 of 27 November 2003 68. The relevant provisions of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels IIa Regulation”)[, repealing Regulation (EC) No. 1347/2000,] read as follows: Preamble “(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases.", "However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. ... (21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required. ... (23) The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should be ‘automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement’. This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this regulation should be recognised and enforceable in all other Member States without any further procedure being required.", "Arrangements for the enforcement of such judgments continue to be governed by national law.” Article 1 “1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: (a) divorce, legal separation or marriage annulment; (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. The matters referred to in paragraph 1(b) may, in particular, deal with: (a) rights of custody and rights of access; (b) guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the child’s person and property, representing or assisting the child; (d) the placement of the child in a foster family or in institutional care; (e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property. ...” Article 10 “In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained.", "(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11 (7); (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” Article 11 “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘the 1980 Hague Convention’), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. 2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 3.", "A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make it impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5.", "A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. 6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. 7.", "Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submission to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit. 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.” 69. Pursuant to Article 40(1)(b) of the Regulation, section 4 of the Regulation applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8).” Article 42, which also forms part of section 4 of the Regulation, provides as follows: Article 42 “1.", "The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8) the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.", "The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning the return of child(ren)). The certificate shall be completed in the language of the judgment.” Article 47 “1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.", "In particular, a judgment which has been certified according to Article 41(1) or Article 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.” Article 60 “In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by the Regulation: ... (e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 70. The applicant complained that the Austrian courts had violated his right to respect for his family life in that they failed to enforce the Venice Youth Court’s judgments ordering his daughter’s return to Italy. He relied on Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life, ... 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 71. The Government contested that argument. A. Admissibility 1. The parties’ submissions 72. The Government raised a number of objections regarding the admissibility of the case.", "73. Firstly they asserted that the Venice Youth Court’s judgment of 10 July 2009, which had ordered the child’s return to Italy where she would reside with her mother, if the latter wished to relocate with her or, alternatively, with the applicant, had been replaced by the Venice Youth Court’s judgment of 23 November 2011. In that judgment, the said court had awarded sole custody to the applicant and had ordered that his daughter be returned to reside with him. The Government argued that the first judgment had thus become obsolete and there was no need for the Court to examine the applicant’s complaint in so far as it related to the non-enforcement of the first judgment. Following its approach in the Povse case (cited above, § 69), the Court should limit its examination to the enforcement of the second judgment.", "74. In the alternative, the Government submitted that the applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention in so far as his complaint concerned the non-enforcement of the Venice Youth Court’s judgment of 10 July 2009. As the said court’s judgment of 23 November 2011 had replaced its first judgment, the applicant should have lodged his application concerning the non-enforcement of that judgment within six months after the new judgment had been issued. Consequently, his application lodged on 14 January 2013 had to be regarded as out of time. 75.", "Furthermore, the Government asserted that the applicant had failed to exhaust domestic remedies, as he had not made use of the possibility to lodge an application under section 91 of the Courts Act (Gerichts-organisationsgesetz) in respect of the enforcement of both judgments of the Venice Youth Court. 76. The applicant contested the Government’s view. He pointed out that both judgments of the Venice Youth Court had been given in the course of the same set of proceedings. The enforcement proceedings in Austria had started on 22 September 2009 when he had sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009 and were still pending.", "Consequently, his application lodged on 14 January 2013 had been introduced in good time. The applicant did not comment on the Government’s submissions concerning exhaustion of domestic remedies. 77. The Italian Government did not make submissions on these issues. 2.", "The Court’s assessment (a) Exhaustion of domestic remedies 78. The Court will first examine the Government’s objection that the applicant has failed to exhaust domestic remedies. 79. The Court reiterates that that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. An applicant must have provided the domestic courts with the opportunity which is in principle intended to be afforded to Contracting States, namely the opportunity of preventing or putting right the violations alleged against them.", "That rule is based on the assumption, reflected in Article 13 of the Convention, that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and which, at the same time, are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among many other authorities, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002‑VIII). 80.", "According to the Court’s established case-law, an application under section 91 of the Courts Act is an effective remedy in respect of complaints under Article 6 of the Convention regarding the length of proceedings (see, for instance, Holzinger v. Austria (no. 1), no. 23459/94, § 25, ECHR 2001‑I). However, the Court has not yet pronounced itself on the question whether section 91 of the Courts Act can also be regarded as an effective remedy in respect of complaints under Article 8 alleging a failure to act or to conduct proceedings expeditiously, affecting an applicant’s right to respect for his or her family life. 81.", "The Court reiterates that there is a difference in the nature of the interests protected by Articles 6 § 1 and 8. Thus, Article 6 § 1 affords a procedural safeguard including the right to have a determination of one’s “civil rights and obligations” within a “reasonable time”, while Article 8, including the procedural requirements inherent in it, aims at the wider purpose of ensuring proper respect for family life (see, mutatis mutandis, McMichael v. the United Kingdom, 24 February 1995, § 91, Series A no. 307‑B). Given the different nature and aims of the two provisions, the finding that a remedy is effective for a complaint about the length of proceedings under Article 6 § 1 is not decisive for the question whether this is also the case for a complaint under Article 8. 82.", "The Court notes that the issue was also raised by the Government in a case which concerned both a complaint under Article 6 § 1 about the length of the custody proceedings in the case and a complaint under Article 8 that the domestic court’s inactivity had enabled the applicant’s husband to take their son to Turkey before a substantive decision on custody was given (Kaplan v. Austria (dec.), no. 45983/99, 14 February 2006). The Court, while finding that failure to make use of the application under section 91 of the Courts Act led to non-exhaustion in respect of the length complaint under Article 6 § 1, did not decide on the question whether section 91 of the said Act might also provide an effective remedy in respect of the complaint under Article 8. Instead, it noted that the applicant had reiterated her request to be granted custody several times and had, moreover, twice sought an interim order in order to prevent her husband from taking their son to Turkey. As such requests called by their very nature for a speedy decision, the Court was satisfied that the applicant had made sufficient use of remedies for her complaint under Article 8 of the Convention.", "83. In the present case, the applicant complained that the Austrian authorities had failed to enforce an order for his daughter’s return to Italy. He had requested her return under the relevant provisions of the Brussels IIa Regulation which, in so far as the return of a wrongfully removed child is concerned, builds on the Hague Convention. The applicant requested that the Austrian courts enforce the order for his daughter’s return, submitting the Venice Youth Court’s judgments of 10 July 2009 and of 23 November 2011 respectively, each accompanied by a certificate of enforceability under Article 42 of the Brussels IIa Regulation. In both sets of proceedings he appealed against the Leoben District Court’s decision refusing the child’s return.", "In the Court’s view, the applicant made use of the appropriate mechanism, the very aim of which is to bring about the speedy return of a wrongfully removed child, and thus, at least in substance, claimed his right to respect for his family life before the Austrian courts (see, mutatis mutandis, Raw and Others v. France, no. 10131/11, § 62, 7 March 2013). 84. In both sets of proceedings, the appellate court and the Supreme Court ruled that the Venice Youth Court’s return order was to be enforced. In addition, the CJEU’s ruling of 1 July 2010 made it clear that the Austrian courts were under an obligation to enforce the return order within the framework of the Brussels IIa Regulation (paragraph 33 above).", "The courts were therefore called upon to proceed with the enforcement of the Venice Youth Court’s judgments. It was for the authorities to act, not for the applicant (Raw and Others, cited above, § 62, with further references). Moreover, the Court notes that the Government have not submitted any particular example showing the application of section 91 of the Courts Act in the specific context of proceedings concerning the enforcement of a return order. The Court concludes that in the present case the applicant was not required to make use of this remedy. 85.", "The Court therefore dismisses the Government’s objection of non-exhaustion. (b) The further objections raised by the Government 86. The Court now turns to the other two points raised by the Government, namely that it should limit its examination to the enforcement of the Venice Youth Court’s second judgment, i.e. the one given on 23 November 2011, which made the latter court’s first judgment obsolete or, alternatively, find that the applicant has failed to comply with the six-month rule in so far as his complaint related to the Venice Youth Court’s first judgment, namely the one given on 10 July 2009. 87.", "The Court observes that the applicant does not complain in the first place that the Austrian courts failed to enforce one or the other of the Venice Youth Court’s judgments but alleges that they displayed a lack of respect for his family life throughout the proceedings which, in his assertion, have to be considered as a whole. 88. Furthermore, the Court observes that in the Povse case (cited above, § 69) case, to which the Government referred, it had noted that it would concentrate its examination on the enforcement of the Venice Youth Court’s second judgment. However, it did not declare the complaint inadmissible in so far as it related to the enforcement of the Venice Youth Court’s first judgment. The main issue raised by that case, brought by the mother of the applicant’s daughter on her own behalf and on behalf of the child, was whether the Austrian courts’ obligation under the Brussels IIa Regulation to proceed to the enforcement of the Venice Youth Court’s judgments without any further examination of the merits violated their right to respect for their family life.", "Consequently, the same issue arose in respect of the enforcement of both judgments of the Venice Youth Court and the Court could concentrate its examination on the enforcement of the second judgment which was still pending. 89. The applicant’s complaint in the present case is of a different nature. He complains in essence that the manner in which the Austrian courts conducted the proceedings in their entirety violated his rights under Article 8. The Court notes the fact that until the present day the applicant has not been able to obtain his daughter’s return to Italy.", "In the Court’s view it would be artificial to consider the proceedings for the enforcement of the Venice Youth Court’s judgments of 10 July 2009 and 23 November 2011 as separate and unconnected, when examining whether or not the Austrian authorities have failed to show respect for the applicant’s family life. 90. Consequently, the Court dismisses the Government’s objections set out above. (c) Conclusion 91. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 92.", "The applicant asserted that throughout the proceedings the Austrian courts had failed to act expeditiously and to take sufficient steps to ensure the enforcement of his daughter’s return to Italy. 93. In respect of the enforcement of the Venice Youth Court’s judgment of 10 July 2009, the applicant asserted in particular that following the Supreme Court’s judgment of 13 July 2010 the competent District Court limited itself to requesting proof that appropriate accommodation would be available for D.P. and his daughter without giving any indication as to how he could comply with that requirement. 94.", "In respect of the enforcement of the Venice Youth Court’s judgment of 23 November 2011, the applicant asserted that proceedings had been examined at three levels of jurisdiction in Austria before the judge at the Wiener Neustadt District Court had taken the first steps towards enforcement of the judgment. They had been interrupted by the interim measure applied by the Court in the Povse case (cited above) and had only been resumed on his request in April 2013. The attempt of 24 July 2013 to have the child handed over to him by coercive measures had been flawed: he alleged that the absence of his daughter from her place of residence must have been due to information being leaked, and claimed that he had not received the necessary assistance from the judge. In addition, he asserted that the subsequent decision of 14 August 2013 to refrain from taking further enforcement measures while the proceedings brought by D.P. before the Venice Youth Court were pending had had no legal basis and had thus been arbitrary.", "95. In sum, he alleged that the Austrian courts, instead of taking effective measures to enforce the return of his daughter, had remained passive or had acted arbitrarily, thus violating his right to respect for his family life. 96. For their part the Government, referring to the Court’s case-law in child abduction cases, observed that States were under a positive obligation to take all measures that could reasonably be expected of them to enforce a decision ordering a child’s return. The obligation was, however, not absolute but required the State to take the interests of all those concerned, and in particular the well-being and rights of the child, into account.", "They observed that the Court had frequently pointed out that the best interests of the child were of paramount importance. 97. Furthermore, the Government pointed out that in relations between EU member States the Brussels IIa Regulation took precedence over the Hague Convention. Pursuant to Article 47 of the Brussels IIa Regulation the law of the member State of enforcement was relevant for the enforcement proceedings, as had also been confirmed by the CJEU’s ruling in the present case. Enforcement law had to be in compliance with Article 8 of the Convention.", "In that connection, the Government pointed out that according to the Court’s case-law, domestic authorities had to do their utmost to facilitate cooperation among the parties concerned, which remained an important ingredient, as any obligation to apply coercion against a child had to be limited. 98. The Government conceded that although the applicant had not made use of his right to visit his daughter since mid-2009, the non-enforcement of the return orders had affected his right to respect for his family life. 99. The Government then gave a detailed overview of the steps taken by the Austrian authorities in the proceedings.", "Regarding the enforcement of the Venice Youth Court’s judgment of 10 July 2009, which the applicant had applied for on 22 September 2009, they pointed out that the case raised controversial questions of EU law and had to be submitted to the CJEU for a preliminary ruling. Having obtained that ruling the Supreme Court ordered the child’s return in its decision of 13 July 2010. The District Court then took the necessary steps, calling repeatedly on the applicant directly and via the Austrian and Italian Central Authorities to furnish proof of the fulfilment of the condition imposed by the Venice Youth Court, namely that accommodation be made available for the applicant’s daughter and her mother by the Vittorio Veneto social services department. No such proof was forthcoming between February and November 2011. The fact that a prerequisite for the child’s return required by the Venice Youth Court had not been met could not be blamed on the Austrian courts.", "100. Regarding the enforcement of the Venice Youth Court’s judgment of 23 November 2011, which the applicant had applied for on 19 March 2012, they pointed out in particular that once the Supreme Court had confirmed on 13 September 2012 that the judgment had to be enforced, the competent District Court had attempted to bring about co-operation between the applicant and the mother of the child in order to facilitate the handover and to limit the impact on the child. Subsequently, the District Court had been prevented from taking any steps from 4 December 2012 to 18 February 2013, during the period in which an interim measure had been applied by the Court in the related Povse case (cited above). Once the District Court had been informed of the lifting of the interim measure, it had continued the proceedings in April 2013 and on 20 May 2013 had ordered that the child be handed over by 7 July. An attempt made on 24 July 2013 to remove the child from her place of residence through the use of coercive measures had been unsuccessful due to her absence.", "The Government pointed out that careful preparation was needed for the use of coercive measures as they could only be carried out by specially trained bailiffs. The Government contested the applicant’s allegation that there must have been a leak as regards the date of the enforcement, noting that this allegation was unsubstantiated and unsupported by any evidence. Finally, the District Court could not be blamed for having refrained from taking further enforcement measures once D.P. had lodged applications with the competent Italian court seeking a stay of the enforcement of the judgment of 23 November 2011 and a new ruling on custody. 101.", "In sum, the Government asserted that the Austrian courts had taken all reasonable measures with a view to enforcing the return order. In the choice of steps taken, the competent District Court had struck a fair balance between implementing the applicant’s rights and having regard to the best interests of a young child, which had to be given priority in its deliberations. 102. The Italian Government observed that the case involved a delicate balance of interests between the fundamental rights involved and expressed the view that the national authorities were best placed to find a solution that duly took into account the best interests of the child. 2.", "The Court’s assessment (a) Principles established by the Court’s case-law 103. The Court notes, firstly, that the relationship between the applicant and his daughter amounts to family life within the meaning of Article 8 of the Convention. The child was born in December 2006 from the relationship between the applicant and D.P. and lived in the applicant’s household until the age of one year and two months. After her mother moved to Austria with her in February 2008, the applicant visited her regularly from October 2008 until mid-2009.", "Since then they had no further contact until February 2014 (see paragraph 62 above). While the parties disagree as to the reason for the lack of contact between the applicant and his daughter, the existence of family life between them is not in dispute. 104. That being so, it must be determined whether there has been a failure to respect the applicant’s family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities.", "There may in addition be positive obligations inherent in an effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Raw and Others, cited above, § 78; Maire v. Portugal, no. 48206/99, § 69, ECHR 2003‑VII; Sylvester v. Austria, nos.", "36812/97 and 40104/98, § 55, 24 April 2003; and Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I). 105. In relation to the State’s positive obligations the Court has repeatedly held that Article 8 includes a parent’s right to have measures taken with a view to being reunited with his or her child and an obligation on the national authorities to take such measures (Raw and Others, cited above, § 79; Maire, cited above, § 70; Sylvester, cited above, § 58; and Ignaccolo-Zenide, cited above, § 94). 106.", "However, the national authorities’ obligation to take such measures is not absolute, since the reunion of a parent with a child who has lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all are always important ingredients. While national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. In a situation where contact between parent and child might jeopardise such interests or infringe such rights, the national authorities are under a duty to ensure that a fair balance is struck between them (see, Raw and Others, § 80; Maire, cited above, § 71; Sylvester, cited above, § 58; and Ignaccolo-Zenide, cited above, § 94). 107.", "Moreover, the Court has repeatedly held that coercive measures against children are not desirable in this sensitive area (Maire, cited above, § 76, and Ignaccolo-Zenide, cited above, § 106) or might even be ruled out by the best interests of the child (Raw and Others, cited above, § 80). 108. The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights. The Court considers that, in the area of international child abduction, the positive obligations that Article 8 of the Convention lays on the Contracting must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see, among others, Ignaccolo-Zenide, cited above, § 95) and the Convention on the Rights of the Child of 20 November 1989 (see, for example Maire, cited above, § 72), which attach paramount importance to the best interests of the child (see Raw and Others, cited above § 82, and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 49-56 and 137, ECHR 2010 and X. v. Latvia, [GC], no.", "27853/09, §§ 93 and 96, ECHR 2013). 109. Finally, the Court reiterates that in cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to an award of parental responsibility, including the enforcement of the final decision, require urgent handling, as the passage of time can have irremediable consequences for relations between the child and the non-resident parent. The Hague Convention recognises this fact because it provides for a whole series of measures to ensure the immediate return of children removed to or wrongfully retained in any Contracting State.", "Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any failure to act for more than six weeks may give rise to a request for a statement of reasons for the delay (Raw and Others, cited above, § 83; Maire, cited above, § 74; and Ignaccolo-Zenide, cited above, § 102). (b) Application of these principles to the present case 110. The present case concerns the applicant’s complaint about a lack of respect for his family life in that the Austrian courts failed to enforce the Venice Youth Court’s judgments ordering his daughter’s return to Italy. 111. The main point to be assessed is whether the Austrian authorities have taken all the measures that they could reasonably be expected to take in order to ensure the return of the applicant’s daughter (see, among other authorites, Raw and Others, cited above, § 84; Maire, cited above, 73; and Ignaccolo-Zenide, cited above, §§ 96 and 101).", "112. In addition, the Court notes that the present case concerns the return of a child from one EU member State to another. In relations between EU member States the rules on child abduction contained in the Brussels IIa Regulation supplement those already laid down in the Hague Convention. Both instruments are based on the philosophy that in all decisions concerning children, their best interests must be paramount (see X. v. Latvia, cited above, §§ 96-97). 113.", "The Hague Convention and the Brussels IIa Regulation, which in the field of child abduction builds on it, associate this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s best interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph (b) of the Hague Convention – see X. v. Latvia, cited above, § 97). 114. Under the Brussels IIa Regulation, which builds on the Hague Convention and is based on the principle of mutual trust between EU member States, the competency to assess whether non-return would be in the child’s best interest is distributed as follows: the State to which the child has been wrongfully removed can oppose return in justified cases. However, under Article 11 (8) of the Brussels IIa Regulation the State in which the child had its habitual residence prior to the wrongful removal can override a decision refusing return pursuant to Article 13 of the Hague Convention. If such a decision is accompanied by a certificate of enforceability pursuant to Article 42 of the Regulation, the requested State has to enforce it.", "According to Article 47 of the Regulation the law of the State of enforcement applies to any enforcement proceedings. 115. The Court’s task in the present case is to assess whether the Austrian courts took swift and adequate measures to secure the return of the applicant’s daughter. The decisive issue is whether the domestic courts, in their choice and implementation of enforcement measures struck a fair balance between the competing interests at stake – those of the child, of the two parents and of public order – taking into account, however, that the best interest of the child must be of primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” (see, mutatis mutandis, X. v. Latvia, cited above, § 95). 116.", "The Court considers it useful in the present case to give an overview of the conduct of the proceedings before entering into the detailed assessment of the Austrian authorities’ handling of the case. (i) The conduct of the proceedings 117. It is uncontested that D.P. had wrongfully removed the child to Austria in February 2008. However, the Venice Youth Court had initially, by judgment of 23 May 2008 (see paragraph 11 above), authorised her and the child to stay in Austria and had granted access rights to the applicant.", "Visits took place between October 2008 and mid-2009. Subsequently, the applicant had no further contact with his daughter until February 2014. While the parties disagree whether this was due to the applicant’s failure to make use of his right to visit his daughter or to obstruction by the child’s mother, the fact that there was no contact between the applicant and his daughter from mid-2009 until February 2014 is not in dispute. 118. Regarding the first set of proceedings, the Court notes the following: On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court’s judgment of 10 July 2009 given pursuant to Article 11(8) of the Brussels IIa Regulation.", "He also submitted a certificate of enforceability under Article 42 of the Regulation. That judgment had ordered the return of the applicant’s daughter to Italy leaving two options to the child’s mother: if she wished to return with the child, the judgment required the Vittorio Veneto social services department to provide them with accommodation. In case she did not wish to return, the child was to reside with the applicant. 119. By a decision of 12 November 2009 the Leoben District Court refused enforcement.", "Its decision was set aside by the Leoben Regional Court on 20 January 2010 on the ground that it was contrary to the provisions of the Brussels IIa Regulation. D.P.’s appeal on points of law of 16 February 2010 raised a number of rather complex questions concerning the application and interpretation of the Brussels IIa Regulation, which led the Supreme Court to request the CJEU for a preliminary ruling on 20 April 2010. The CJEU gave judgment on 1 July 2010. On 13 July 2010 the Supreme Court dismissed D.P.’s appeal on points of law confirming that the Austrian courts had to enforce the Venice Youth Court’s judgment without reviewing the merits of the case, while it was for D.P. to raise any argument relating to a change of relevant circumstances before the competent Italian court.", "D.P. made use of this opportunity but the Venice Youth Court dismissed her application for a stay of the enforcement of its judgment on 31 August 2010. 120. According to the file, no action was taken until 17 February 2011 when the Leoben District Court requested the applicant to provide evidence that appropriate accommodation would be made available (see paragraph 38 above). More than a month later, on 22 March 2011, the Austrian Central Authority informed its Italian counterpart that the condition of providing accommodation had not been complied with.", "Further letters with similar contents were sent to the Italian Central Authority between May and November 2011. It appears that no reply was received from the Italian authorities. 121. Regarding the second set of proceedings, the Court notes the following: While the proceedings concerning the enforcement of the Venice Youth Court’s judgment of 10 July 2009 had come to a standstill, the applicant had obtained a new judgment by the Venice Youth Court on 23 November 2011. It transferred sole custody of his daughter to him and ordered that she return to Italy to reside with him.", "122. On 19 March 2012 the applicant sought the enforcement of that judgment again submitting a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The Leoben District Court, by decision of 3 May 2012, once more refused the request for the return of the applicant’s daughter. On 15 June 2012, the Leoben Regional Court granted the applicant’s appeal on the ground that the condition that accommodation be made available was no longer applicable and ordered D.P. to hand over the child within fourteen days, with enforcement measures to be taken in case of failure to comply.", "D.P. did not comply with the order but made use of the possibility of lodging an appeal on points of law with the Supreme Court, which was rejected by that court on 13 September 2012 as the legal issues has already been clarified in the first set of proceedings. 123. Subsequently, on 1 October 2012, the competence to deal with the present case was transferred from the Leoben District Court to the Wiener Neustadt District Court, as D.P. and the applicant’s daughter had changed their place of residence.", "The Wiener Neustadt District Court attempted to obtain the co-operation of both parents, while threatening to make use of coercive measures should no negotiated solution be found. The first attempt was made on 4 October 2012, when the Wiener Neustadt District Court ordered both parents to indicate within two weeks whether they were prepared to take part in a hearing with the aim of finding an agreed solution for the child’s return. The applicant indicated that he was not prepared to take part in the hearing. It appears that no steps were taken in November 2012. The proceedings were interrupted between the beginning of December 2012 and mid-February 2013 (see paragraph 54 above).", "Subsequently, two months elapsed until April 2013, when the District Court resumed the proceedings and made a second attempt to bring about both parents’ co-operation. 124. Following the second unsuccessful attempt to bring about both parents’ co-operation, the District Court issued an order on 20 May 2013, setting 7 July 2013 as the deadline for the child’s handover to the applicant as the next step, again threatening the use of coercive measures in the event of non-compliance. As D.P. did not comply with the order, the court made an attempt to enforce the order through the use of coercive measures on 24 July 2013.", "That attempt remained unsuccessful. 125. On 9 August 2013 D.P. sought a stay on the enforcement of the child’s return from the Venice Youth Court and asked it to take a new decision on custody, seeking an award of sole custody of the child. She advanced a number of arguments alleging that the circumstances had changed and that the child’s return to Italy would endanger her well-being (see paragraph 59 above).", "Thereupon, on 14 August 2013 the Wiener Neustadt District Court decided to refrain from further enforcement measures, pending the decision of the Venice Youth Court. According to the information available to the Court, the proceedings before the Venice Youth Court are still pending. (ii) Whether the Austrian authorities took swift and adequate measures 126. The Court will now examine whether the Austrian courts took swift and adequate measures to protect the applicant’s right to respect for his family life. 127.", "The Court notes firstly, that the decisions in the first set of proceedings followed at reasonable intervals. The case, raising a new issue regarding the application of the Brussels IIa Regulation came before three levels of jurisdiction. In addition it was submitted to the CJEU for a preliminary ruling. The Court reiterates that bringing the case before the CJEU was a necessary step in order to bring the control mechanism provided for in European Union law into play (see, Povse, cited above, §§ 81-83). Up to 31 August 2010 when the Venice Youth Court dismissed D.P.’s request for a stay of the enforcement of its return order, the Court does not see any failure of the Austrian courts to handle the case expeditiously.", "128. The subsequent phase, however, was marked by a period of inactivity. Although almost a year had gone by since the applicant’s request for his daughter’s return, the Leoben District Court remained inactive for five and a half months until mid-February 2011, when it contacted the applicant and then the Italian central authority in order to establish whether accommodation for the applicant’s daughter and her mother would be made available. Given that the Venice Youth Court’s judgment had provided alternatives for the child’s return either with or without her mother, the Court can accept that the Austrian courts gave preference to the first alternative which involved a less drastic interference with the family life between the applicant’s daughter and her mother. However, no explanation has been provided for the District Court’s failure to take action for a protracted period.", "The Court notes that in return proceedings far shorter delays give rise to concern. In the context of the Hague Convention any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see, for instance, Ignaccolo-Zenide, cited above, §102). The delay here at issue weighs all the more heavily, given that contacts between the applicant and his daughter had already broken off in mid-2009, The District Court must have been aware that any further delay might have irremediable consequences for the relationship between them. 129. Subsequently, the Austrian authorities were faced with the lack of any reply from the Italian authorities between March and November 2011.", "As the proceedings had reached a deadlock, it is understandable that the applicant sought a new judgment from the Venice Youth Court, which he obtained on 23 November 2011. However, he only requested its enforcement on 19 March 2012. The request was refused by the Leoben District Court. While it is a normal occurrence for a court decision to be set aside on appeal, the Court notes that the District Court’s decision triggered a new round of appeal proceedings before the Leoben Regional Court, which decided in the applicant’s favour and finally opened up the possibility for D.P. to lodge a further appeal on points of law with the Supreme Court, although the relevant legal issues had already been resolved in the first set of proceedings.", "130. At the time the Wiener Neustadt District Court became competent to deal with the case in October 2012, a period of three years had gone by since the applicant had requested the enforcement of the Venice Youth Court’s first judgment ordering his daughter’s return. As follows from the considerations set out above, this situation was in part attributable to the lack of expedition in the Austrian courts’ own handling of the case. Moreover, there had not been any contacts between the applicant and his daughter during this period. In that connection, the Court notes that it does not appear that the applicable law provided the courts with adequate means to re-establish such contact while the proceedings were pending.", "131. Given the difficult situation, the Court considers that the District Court took appropriate steps, trying to secure the parties’ co-operation in order to avoid coercive measures in the interest of the child. Although the Court discerns some delays in November 2012 and between February and April 2013, it does not consider them decisive in themselves. Ultimately, faced with the unbending position of both parents, the District Court proceeded to the implementation of coercive measures. While the attempt at enforcement of 24 July 2013 was unsuccessful, the Court sees no indication in the file that the failure of the attempt could be attributed to the conduct of the Austrian authorities, as alleged by the applicant.", "(iii) Overall assessment 132. Although the Court attaches considerable weight to the delay caused by the Leoben District Court in the first set of proceedings, it does not overlook a number of factors which contributed to the difficulty in dealing with the case. To begin with, there was the lack of any reply by the Italian authorities in the first set of proceedings. The applicant’s choice, though understandable, to make a request for enforcement of the Venice Youth Court’s second judgment, meant that the whole range of remedies was again available to the parties. Finally, the fact that contact between the applicant and his daughter had been interrupted since mid-2009 made the authorities’ task all the more difficult.", "The unbending position of both parents added further to the difficulty of the case. This became particularly apparent in the second set of proceedings, which were marked by the District Court’s attempts to bring about co-operation between the parties, with the aim of avoiding coercive measures against the applicant’s daughter. However, the Court reiterates that that the lack of co-operation between separated parents is not a circumstance which by itself may exempt the authorities form their positive obligations under Article 8 (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 176, 27 September 2011). 133.", "The Court would add the following considerations. It cannot but note that despite the fact that the applicant submitted a final and enforceable return order to the Austrian courts in September 2009, the Austrian authorities have not been able to bring about an enforcement of this or the subsequent return order until today. In that context, it is of particular importance to note that so far no final decision has been taken which would conclude that return would be against the child’s best interests. The issue whether circumstances have changed to such an extent that an enforcement of the Venice Youth Court’s judgment is no longer justified is currently pending before the Venice Youth Court. 134.", "According to the Court’s established case-law, effective respect for family life requires that the future relations between parents and children are not determined by the mere effluxion of time (see, among others, H. v. the United Kingdom, 8 July 1987, § 90, Series A no. 120; Raw and Others, cited above, § 83). In that connection, the Court has also repeatedly noted that the passage of time can have irremediable consequences for relations between the child and the parent who does not live with it (see, for instance Keegan v. Ireland, 26 May 1994, § 55, Series A no. 290; Ignaccolo-Zenide, cited above, § 102; Maire, cited above, § 74). This raises the question whether the procedural framework in place allowed the applicant to pursue his rights effectively.", "135. In the specific the context of return proceedings, the Court has held that it is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Article 8 of the Convention (see, for instance Ignaccolo-Zenide, cited above, § 108; Sylvester, cited above, § 68). Moreover, in a recent case relating to proceedings under the Hague Convention, the Court examined whether the procedural framework provided by the State was adequate to give effect to the object and purpose of that Convention (see, López Guió v. Slovakia, no. 10280/12, §§ 106-111, 3 June 2014). In the Court’s view, similar considerations apply in the present case.", "136. Specific streamlined proceedings may be required for the enforcement of return orders – be it under the Hague Convention or under the Brussels IIa Regulation – for a number of reasons. Without overlooking that the enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, the Court notes that it is in the nature of such proceedings that the lapse of time risks to compromise the position of the non-resident parent irretrievably (see, Lópes Guió, cited above, § 109). Moreover, as long as the return decision remains in force the presumption stands that return is also in the interests of the child (see, X. v. Latvia, cited above, §§ 96-97). The proceedings available to the applicant in the present case followed the normal pattern of enforcement proceedings.", "They did not contain any specific rules or mechanisms to ensure particular speediness. It does not appear either that the authorities had appropriate means at their disposal to ensure that contact between the applicant and his daughter, which had broken off in mid-2009, was re-established and maintained while the proceedings were pending. 137. In conclusion, the Court considers that the Austrian authorities failed to act swiftly in particular in the first set of proceedings. Moreover, the available procedural framework did not facilitate the expeditious and efficient conduct of the return proceedings.", "In sum, the applicant did not receive effective protection of his right to respect for his family life. 138. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 139.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 140. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage, arguing that the Austrian courts’ failure to enforce his daughter’s return to Italy has deprived him of contact with his daughter over a lengthy period. 141. The Government contested the applicant’s claim.", "They asserted that the applicant himself did not make any attempt to get in contact with his daughter and that, in any case, the amount claimed appeared excessive in the light of awards made by the Court in comparable cases. 142. The Court accepts that the applicant must have suffered distress as a result of the Austrian Court’s failure to enforce the return of his daughter to Italy, which is not sufficiently compensated by the finding of a violation of the Convention. Having regard to the sums awarded in comparable cases and making an assessment on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage. B.", "Costs and expenses 143. The applicant also claimed EUR 39,283.85 under the head of costs and costs and expenses. This sum is composed of EUR 24,393.65 incurred in the proceedings before the Venice Youth Court and EUR 14,890.20 incurred in the proceedings before the Court. These amounts included value-added tax. 144.", "The Government submitted that the applicant had failed to give any indication as to the existence of a causal link between the costs claimed for the proceedings before the Venice Youth Court and the alleged violation. Regarding the costs claimed in respect of the proceedings before the Court, the Government argued that they appeared excessive. 145. 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 for costs and expenses in the proceedings before the Venice Youth Court and considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to him on that amount.", "C. Default interest 146. 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. FOR THESE REASONS, THE COURT,UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 20,000 plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000, plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "SECOND SECTION CASE OF GÜLCÜ v. TURKEY (Application no. 17526/10) JUDGMENT STRASBOURG 19 January 2016 FINAL 06/06/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gülcü v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Julia Laffranque, President,Işıl Karakaş,Nebojša Vučinić,Valeriu Griţco,Ksenija Turković,Jon Fridrik Kjølbro,Georges Ravarani, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 15 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17526/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ferit Gülcü (“the applicant”), on 16 March 2010. 2. The applicant was represented by Ms S. Şahin and Mr M. Şahin, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3.", "On 31 August 2012 notice of the application was given to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1992 and lives in Diyarbakır. A.", "Events of 14 July 2008 5. On 14 July 2008 a demonstration was held in Diyarbakır to protest about the conditions of detention of Abdullah Öcalan, the leader of the PKK (Kurdish Workers’ Party), an illegal armed organisation. 6. According to a report prepared by four police officers on 21 July 2008 following the examination of video footage of the demonstration recorded by the police, on 11 July 2008 the Fırat News Agency, a website which was controlled by the PKK, had published a declaration of the Democratic People’s Initiative of Turkey and Kurdistan. The declaration contained instructions to hold meetings and marches in each town and city on 14 July 2008 to show support for Abdullah Öcalan.", "The report also stated that on the website www.rojaciwan.com, which was also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement to be held by the Party for a Democratic Society (Demokratik Toplum Partisi (DTP)) in Diyarbakır on 14 July 2008 had been published. 7. The report stated that the police had received information according to which the Diyarbakır branch of the DTP was the organiser of the press statement to be held and MPs, mayors and local politicians from the DTP as well as members of a number of non-governmental organisations would gather in front of the DTP’s Diyarbakır party office at around 5.30 p.m. and march to Koşuyolu Park, where they would make a press statement. The police took the necessary measures as they suspected that there could be violent protests during the march, which could become a demonstration for the PKK. 8.", "According to the police report, people started to assemble by 4.30 p.m. in front of the DTP party office. Mayors and MPs were among the demonstrators. By 5.50 p.m. approximately 3,000 people had gathered. Thereafter, demonstrators started to march, arriving at 6.30 p.m.at Koşuyolu Park, where the press statement was made. At 7 p.m. while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones at the police officers and the cars parked in the neighbourhood.", "Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, such as “Every Kurd is Öcalan’s fedai[1]” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan[2], to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı [3]” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”) , “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan and flags of the so-called “Confederation” were also brandished. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings.", "As a result, the police had to use proportionate force against the group, who were holding an illegal demonstration. The police intervened using truncheons, water and tear gas. The police report also noted that some people had taken down the Turkish flag in the schoolyard of the Diyarbakır nursery school. 9. At the end of the report it was noted that, according to the video footage, the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the Turkish flag at the Diyarbakır nursery school.", "10. The report of 21 July 2008 also contained twenty-four photographs extracted from the video footage recorded by the police. In four photographs, the applicant is seen in a group of young men while, according to the police, throwing stones at the security forces. In two photographs, he is seen while standing together with a group of people by a flag pole. A total of six photographs concern the taking down of the Turkish flag; one photograph contains an image of a knocked-over waste container; and one other photograph shows a damaged passenger van.", "The remaining photographs contain images of demonstrators standing in front of a building or walking. B. Criminal proceedings against the applicant 11. The applicant was arrested on 21 July 2008. According to the arrest and transfer report, the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the Turkish flag in a schoolyard.", "The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children’s branch of the Security Directorate, as he had been found to be a minor subsequent to a medical check. The applicant noted “I am not signing” and put his signature under that sentence on the report. 12. On 22 July 2008 the applicant made statements before the Diyarbakır public prosecutor in the presence of a lawyer. His statement reads as follows: “...I am a primary school graduate and a peddler.", "On 14 July 2008 my brother and I were selling watermelons in front of Koşuyolu Park in Diyarbakır. Suddenly, a large group of demonstrators chanting the slogan “Long live President Öcalan” (“Biji Serok Apo”) approached us. Subsequently, the police intervened and took a number of persons into custody. Some individuals among the crowd then began throwing stones at the police officers. I also joined the demonstrators at the beginning and chanted the slogan “Long live President Öcalan”.", "I then threw stones at the police officers. After a short while, some people went to a school. I also went with them. Some of them climbed on the flagpole in the school garden. They took down the Turkish flag and replaced it with a PKK flag.", "I was not involved in taking down the Turkish flag. I did not have any particular purpose when I chanted the slogan and threw stones at the police. I only acted together with the crowd. I do not know why there was a demonstration. I do not have any connection with the illegal organisation.", "The person in the photograph that you have shown is me.” 13. On the same day the applicant was brought before a judge of the Fifth Division of Diyarbakır Assize Court. He maintained that his statements to the public prosecutor had reflected the truth. His lawyer asked the court not to remand the applicant in custody, submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts. 14.", "The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “committing an offence on behalf of an illegal organisation without being a member of the organisation”, in breach of Law no. 2911, and “dissemination of propaganda in support of a terrorist organisation”, and having regard to the evidence. 15. On 22 July 2008 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Fifth Division of Diyarbakır Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law no.", "5237) on the basis of Articles 220 § 6 and 314 § 3 of the same Code, resisting the security forces by way of throwing stones under sections 23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in support of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code. 16. On 21 October 2008 the Fifth Division of Diyarbakır Assize Court held the first hearing in the case.", "During the hearing, the applicant reiterated his statements of 22 July 2008 and asked to be released. He maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened. He submitted that he had not been among those who had taken down the Turkish flag. 17. The public prosecutor asked the court to convict the applicant under Articles 300 and 314 of Law no.", "5237, section 7(2) of Law no. 3713 and sections 23(b) and 33(c) of Law no. 2911. The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged between 15 and 18 years old at the material time. 18.", "On 11 November 2008 the Fifth Division of Diyarbakır Assize Court rendered its judgment in the case against the applicant. The court noted, at the outset, a summary of the applicant’s defence submissions, the public prosecutor’s observations on the merits of the case and the following evidence in the case file: the applicant’s statements before the public prosecutor and the judge on 22 July 2008; his identity documents and a document showing that he did not have a previous criminal record; the arrest and transfer report of 21 July 2008; an incident report dated 14 July 2008; printed versions of documents downloaded from the Internet; the police report of 21 July 2008 describing the events of 14 July 2008[4] and the applicant’s participation in those events; photographs extracted from the video footage recorded by the police; and medical reports. 19. In its judgment, the Assize Court held as follows: “... THE INCIDENT, EVIDENCE AND ASSESSMENT In a declaration made on 11 July 2008 on the website of the Fırat News Agency, which is controlled by the terrorist organisation, the PKK, the Democratic People’s Initiative of Turkey and Kurdistan gave the following instructions: ‘This year’s July 14 celebrations should be made on the basis of the approach of “live and make the leadership live”... in each town and city, a march should be held on 14th of July with a view to showing respect for our leader.", "This march should have the nature of Serhildan (rebellion); should paralyse the life of the enemy and be handled in a way that shows how to deal with the Kurdish people’s leader ... in the form of vicious notification to the enemy that the approach to the people’s leader is the approach to the Kurdish people, and at the same time, a reason for war for the Kurdish people ... every city and district should determine the itinerary depending on the conditions and get prepared ... today, as well, there are attacks against our leadership and our people ... this march should be the victory of human dignity.’ Similarly, on the website entitled www.rojaciwan.com, which is also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement was published: “...while the shaving off of Öcalan is provoking heated reaction, the non-governmental organisations have lent support to the press statement to be made under the leadership of the Democratic Society Party. The NGOs have described the treatment of Öcalan as torture and made a call to participate.” Against this background, on 14 July 2008 at around 4.30 p.m. people began to gather in front of the local branch of the DTP. Among the crowd, there were Members of Parliament and mayors who were members of the DTP. At around 5.50 p.m. there were 3,000 persons gathered. At 5.50 p.m. the crowd started the march and arrived in Koşuyolu Park at around 6.30 p.m.", "Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, the leader of the terrorist organisation, such as “Every Kurd is Öcalan’s fedai” (“Her Kürt Apo’nun Fedaisidir”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), “The Youth to Botan, to the free country” (“Gençlik Botan’a, Özgür Vatana”), “Salutations to İmralı” (“Selam Selam İmralı’ya Bin Selam”), “With our blood, with our life, we are with you, Öcalan” (“Canımızla, kanımızla, seninleyiz Öcalan”), “Long live President Öcalan” (“Biji Serok Apo”), “Martyrs are immortal” (“Şehîd Namirin”), “No life without the Leader, Mr./Esteemed Öcalan” (“Başkansız yaşam olmaz, Sayın Öcalan”). They carried banners which contained slogans such as “Stop the torture in İmralı” (“İmralı işkencesine son”) and “We make war for life, we die for peace” (Yaşamak için savaşırız; Barış için ölürüz”); photographs of Abdullah Öcalan, the leader of the terrorist organisation and flags of the so-called “Confederation”. At around 6 p.m. speeches began. At 7 p.m., while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones ... at the police officers and the cars parked in the neighbourhood. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the vicinity with stones and bats while chanting slogans in support of the PKK and its leader.", "The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to interfere with the group who were holding an illegal demonstration. Some within the crowd took down the Turkish flag in the schoolyard of the Diyarbakır nursery school ... In this connection, in the light of the indictment, the applicant’s indirect confessions, the incident report, the document containing the description of the events of 14 July 2008 prepared by the police, the arrest report, photographs showing the accused and the whole content of the case file, it has been established that the accused Ferit Gülcü actively took part in the illegal demonstrations held on 14 July 2008 in Diyarbakır in accordance with the instructions of the terrorist organisation PKK; that he chanted the slogan “Long live President Öcalan” (“Biji Serok Apo”) together with the crowd; that he attacked the police with stones; that he acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school; and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence.", "In his defence submissions, the accused accepted that he had taken part in the illegal demonstration; that he had made propaganda in support of the terrorist organisation; and that he had resisted the police by way of throwing stones. He denied, however, the veracity of the allegation that he had participated in the taking down of the Turkish flag in the schoolyard of the Diyarbakır nursery school. Having regard to the documents and photographs in the case file, it has been understood that the accused acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence. An accused should be convicted under Article 314 § 2 on the basis of Articles 314 § 3 and 220 § 6 of the Criminal Code if it is established that the offences in question were committed within the scope of an [illegal] organisation’s activities or if those offences serve as the evidence or basis of offences committed on behalf of an [illegal] organisation. In the present case, it has been understood that on 14 July 2008 the accused took part in the meetings and demonstrations, which subsequently became illegal, held as a result of the general call made by the organisation and the calls disseminated by the media controlled by the organisation and in accordance with the organisation’s purposes and that, with that aim, he committed the following offences: dissemination of terrorist propaganda, breach of Law no.", "2911, denigration of symbols of the sovereignty of the State. It has thus been concluded that these acts, which were committed within the knowledge and in line with the will of the organisation, were perpetrated on behalf of the organisation. Therefore, the accused should also be convicted under Article 314 § 2 with reference to Articles 314 § 3 and 220 § 6 of Law no. 5237 along with the convictions for his other acts...” 20. Diyarbakır Assize Court then acquitted the applicant on the charge of denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code, noting that it was not established that the crime had been committed by the applicant.", "21. However, the Assize Court convicted the applicant under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section 7(2) of Law no. 3713; and sections 23(b) and 33(c) of Law no. 2911 and sentenced him to a total of seven years and six months of imprisonment. 22.", "The Assize Court first convicted him of membership of an illegal organisation pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code as it found it established that the applicant had taken part in the events of 14 July 2008 which had become propaganda in support of the illegal organisation, upon the call made by the PKK. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; increased it by one and a half times by virtue of section 5 of Law no. 3713 (seven years and six months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account that the accused had been aged between 15 and 18 at the material time (five years); and, finally, reduced it by one sixth under Article 62 § 1 of the Criminal Code taking into account the accused’s “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of four years and two months of imprisonment). 23. Diyarbakır Assize Court also convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law no.", "3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); further reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account his “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of six months and twenty days). The court decided not to commute the sentence to a fine under section 7(2) of Counter-Terrorism Law no. 3713, or to defer it pursuant to section 13 of Law No. 3713.", "It finally found Article 231 of the Code of Criminal Procedure governing the suspension of the pronouncement of a judgment inapplicable in the circumstances of the applicant’s case. 24. The first-instance court finally convicted the applicant of resistance to security forces pursuant to sections 23(b) and 33(c) of Law no. 2911. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (three years and four months); reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account the accused’s “sincere confessions” as well as his attitude and behaviour during the proceedings (thus reaching a total of two years, nine months and ten days’ imprisonment).", "It decided not to commute the sentence to a fine, and not to defer it either, regard being had to the overall sentence and the fact that the accused did not give the impression that he would refrain from committing a crime. 25. On 6 October 2009 the Court of Cassation upheld the judgment of 11 November 2008. 26. On 16 December 2009 the final decision was deposited with the registry of the first-instance court.", "C. Subsequent developments 27. On 25 July 2010 Law no. 6008 entered into force. 28. On 26 July 2010 the applicant’s representative lodged a petition with the Fifth Division of Diyarbakır Assize Court.", "Noting that Law no. 6008 had amended certain provisions of Laws nos. 2911 and 3713, the applicant’s representative requested that the court examine whether the amended versions of those provisions could be considered to be in favour of the applicant and, if so, whether the execution of the applicant’s sentence could be suspended. 29. On the same day the Fifth Division of Diyarbakır Assize Court decided to suspend the execution of the applicant’s sentence in view of the fact that certain provisions of Laws no.", "2911 and 3713 amended by Law no. 6008 were in favour of juvenile offenders. Subsequently, the applicant was released from prison and a new procedure was initiated in accordance with Article 7 § 2 of the Criminal Code, according to which in the case of a difference between the legal provisions in force on the date of commission of a crime and those in force after that date, the provision which is more favourable will be applied to the offender. 30. On 3 December 2010 the Fifth Division of Diyarbakır Assize Court held that it no longer had jurisdiction over the applicant’s case in the light of a new paragraph added to Article 250 of the Code of Criminal Procedure by Law no.", "6008. According to this new paragraph, minors could not be tried by assize courts which had special jurisdiction. 31. On 20 January 2011 and 22 February 2011 Diyarbakır Juvenile Assize Court and Diyarbakır Juvenile Court decided, respectively, that they were not competent to examine the case. 32.", "Upon both juvenile courts declining jurisdiction, the case was transferred to the Court of Cassation to resolve the issue of jurisdiction. On 3 October 2012 the Court of Cassation decided that Diyarbakır Juvenile Court had jurisdiction over the case. 33. Subsequently, Diyarbakır Juvenile Court started the re‑assessment of the applicant’s case with a view to determining the applicable legal provisions and the sentences in accordance with Article 7 § 2 of the Criminal Code (see paragraph 29 above) and in the light of the amendments made to Laws nos. 2911 and 3713 by Law no.", "6008 (uyarlama yargılaması). 34. On an unspecified date the applicant made statements before Diyarbakır Juvenile Court. He contended that he had already served his prison sentence and that he contested the new procedure. 35.", "On 20 December 2012 Diyarbakır Juvenile Court rendered its judgment regarding the applicant. Having regard to the amendments made to Laws nos. 2911 and 3713 by Law no. 6008, the Juvenile Court revoked the applicant’s convictions contained in the judgment of 11 November 2008, holding that the amendments applied by Law no. 6008 were in favour of the applicant.", "36. The first-instance court then acquitted the applicant of the charge of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code, having regard to section 34/A of Law no. 2911, which had entered into force on 25 July 2010 with Law no. 6008 (see paragraph 50 below). 37.", "Diyarbakır Juvenile Court further convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law No. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no.", "5395). 38. The Juvenile Court further convicted the applicant of participation in a demonstration while in possession of prohibited materials pursuant to section 33(1) of Law no. 2911. Applying the minimum penalty, it sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days).", "Considering that the applicant would not commit any further crime and having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court decided to suspend the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395. 39. Diyarbakır Juvenile Court also convicted the applicant of resistance to the security forces which had used force to disperse the demonstrators pursuant to section 32(1) of Law no.", "2911. Applying the minimum penalty, the first-instance court sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no. 5395).", "40. Diyarbakır Juvenile Court finally convicted the applicant of obstructing the security forces in the execution of their duties by way of resistance together with other persons and using the influence of an organisation pursuant to section 32(2) of Law no. 2911 and Article 265 § 1 of the Criminal Code. Applying the minimum penalty, the court sentenced the applicant to six months’ imprisonment under this head. It then increased the sentence by one third as the crime had been committed collectively (eight months); further increased it by one half pursuant to Article 265 § 4 of the Criminal Code as the crime had been committed using the influence of an organisation (twelve months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for a minor (thus reaching a total of six months and twenty days).", "Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395. 41. On 31 December 2012 the judgment of 20 December 2012 became final in the absence of any objection.", "II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Criminal Code (Law no. 5237) 42. Under Article 7 § 2 of the Criminal Code, in case of a difference between the legal provisions in force at the date of commission of an offence and those in force after that date, the provision which is more favourable is applied to the offender.", "43. At the material time, Article 220 of the Criminal Code read as follows: Establishing organisations for the purpose of criminal activity “Article 220 - (1) Anyone who establishes or directs organisations for the purpose of criminal activity shall be liable to imprisonment of between two and six years provided that the structure of the organisation, the number of members, and the quantity of equipment and supplies are sufficient to commit the intended crimes. (2) Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to imprisonment of between one and three years. (3) If the organisation is armed, the sentences stated above shall be increased by a proportion of between one quarter and one half. (4) Any crime committed within the framework of the organisation’s activities shall be punished separately.", "(5) The heads of the organisations shall also be sentenced as the perpetrators of all crimes committed within the framework of the organisation’s activities. (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. (7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. (8) Anyone who makes propaganda for the organisation or its objectives shall be punished by imprisonment of between one and three years. If the said crime is committed through the media and press the sentence shall be increased by one half.” Paragraphs 6 and 7 of Article 220 were amended by Law no.", "6352, which entered into force on 2 July 2012, as follows: “(6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. (7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds depending on the nature of the assistance.” Article 220 § 6 was further amended by Law no. 6459, which entered into force on 11 April 2013.", "It currently reads as follows: (6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. This paragraph shall be applicable only for armed organisations. 44. Article 314 of the Criminal Code reads as follows: Armed organisations “Article 314 - (1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years.", "(2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years. (3) Other provisions relating to the crime of forming an organisation for the purpose of criminal activity are also applicable for this crime.” 45. Article 300 § 1 of the Criminal Code reads as follows: Denigration of symbols of the sovereignty of the State “Article 300 - (1) Anyone who publicly tears, burns or otherwise denigrates the Turkish flag shall be sentenced to a term of imprisonment of between one and three years. This provision shall apply to all signs bearing the white crescent and star on a red ground described in the Constitution as a symbol of the sovereignty of the State of the Republic of Turkey...” 46. Article 265 § 1 of the Criminal Code reads as follows: Resistance with a view obstructing the execution of duties “Article 265 - (1) Anyone who uses methods of violence or threats against a public officer with a view to obstructing him or her in the execution of his or her duties shall be liable to imprisonment of between six months and three years.” B.", "The Meetings and Demonstration Marches Act (Law no. 2911) 47. According to section 23(b) of the Meetings and Demonstration Marches Act (Law no. 2911), in force at the material time, meetings or demonstration marches during which the demonstrators or the participants bear, inter alia, firearms, explosives, cutting and perforating tools, stones, bats, iron or rubber bars, wires, chains, poisons, gas or fog materials, were considered to be “unlawful meetings and demonstration marches”. 48.", "Section 33(c) of Law no. 2911 provided as follows, before it was amended by Law no. 6008 on 25 July 2010: “Section 33 ... (c) Persons who show resistance with weapons or materials listed in section 23(b) while being dispersed [during meetings and demonstration marches] shall be liable to a term of imprisonment of between five and eight years...” Following the amendments introduced by Law no. 6008, section 33 of Law no. 2911 read, in so far as relevant, as follows: “Persons who take part in meetings and demonstration marches while carrying weapons or materials listed in section 23(b) shall be liable to a term of imprisonment of between six months and three years...” 49.", "Following the amendments introduced by Law no. 6008, section 32(1) and (2) of Law no. 2911 currently reads as follows: “Persons taking part in unlawful meetings or demonstration marches who continue not to disperse despite warnings or use of force shall be liable to a term of imprisonment of between six months and three years. If the offender is one of the organisers of the meeting or the demonstration march, the sentence shall be increased by half. Persons who resist the security forces by methods of violence or threats despite warnings or use of force shall also be punished for committing the crime proscribed by Article 265 of the Criminal Code (Law no.", "5237) of 26 September 2004.” 50. By Law no. 6008 a new provision, section 34/A, was added in Law no. 2911. Section 34/A reads as follows: “Section 2(2) of the Prevention of Terrorism Act (Law no.", "3713) shall not be applicable to children who commit the crime of resistance during unlawful meetings and demonstration marches or who commit the crime of propaganda during meetings and demonstration marches in which they take part.” C. The Prevention of Terrorism Act (Law no. 3713) 51. At the material time, section 7(2) of the Prevention of Terrorism Act read as follows: “Any person who disseminates propaganda in support of a terrorist organisation shall be liable to a term of imprisonment of between one and five years...” 52. Section 2(2) of Law no. 3713 which is referred to in section 34/A of Law no.", "2911 (see paragraph 50 above) reads as follows: “Persons who commit crimes on behalf of a (terrorist) organisation shall be considered as terror offenders even if they are not a member of that terrorist organisation.” D. Code of Criminal Procedure (Law no. 5271) 53. Suspension of the pronouncement of a judgment is governed by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows: “... (5) If the accused has been convicted on the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that: (a) the offender has never been found guilty of a wilful offence; (b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and] (c) the damage caused to the victim or to society is redressed by way of restitution or compensation.", "... (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that ... up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures.", "(12) An objection to the decision to suspend the pronouncement of the judgment may be filed.” 54. At the material time, according to Article 250 of the Code of Criminal Procedure and section 4 of the Prevention of Terrorism Act assize courts with special jurisdiction were competent to try a number of crimes, including the crimes proscribed by Article 314 of the Criminal Code and section 7(2) of the Prevention of Terrorism Act. By Law no. 6008 a new paragraph (paragraph 4) was inserted in Article 250 of the Code of Criminal Procedure, according to which children could not be tried by assize courts which had special jurisdiction. On 5 July 2012 both Article 250 of the Code of Criminal Procedure and section 4 of the Prevention of Terrorism Act were repealed and assize courts with special jurisdiction were abolished.", "E. Code of Child Protection (Law no. 5395) 55. Article 23 of the Code of Child Protection reads as follows: “At the end of the criminal proceedings brought against a child, the court may decide to suspend the pronouncement of the judgment if the conditions are fulfilled. With regard to these persons, the period of supervision is three years.” F. The decision of the Court of Cassation of 4 March 2008 (Case no. 2007/9-282, Decision no.", "2008/44) 56. In criminal proceedings brought against a certain F.Ö., on 29 September 2006 Diyarbakır Assize Court convicted him under section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911 on account of his participation in and conduct during three demonstrations. 57.", "On 21 February 2007 the Ninth Criminal Division of the Court of Cassation quashed the judgment of the first-instance court, holding that F.Ö.’s acts constituted not only the offences proscribed in section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911, but also membership of an illegal organisation under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code, as he had committed those offences on behalf of the organisation. The Ninth Chamber therefore considered that F.Ö. should be punished for having committed the offence of membership of an illegal organisation and the other offences proscribed in section 7(2) of Law no.", "3713 and section 32(1) and (3) of Law no. 2911. 58. On 31 May 2007 Diyarbakır Assize Court reiterated its previous judgment that F.Ö.’s acts did not constitute the offence proscribed in Article 314 § 2 of the Criminal Code. The Assize Court noted the following: “...", "In cases where people participate in the funerals of members of a terrorist organisation or in Newroz celebrations, subsequent to abstract and generalised calls of that organisation, and in cases where chanting slogans constitutes propaganda for that organisation, it is not possible to state that those crimes were committed on behalf of the organisation. In order for a court to conclude that a crime was committed on behalf of an organisation, the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act. ...” 59. As a result of the disagreement between Diyarbakır Assize Court and the Ninth Criminal Division of the Court of Cassation, the case was transferred to the Plenary Court of Cassation (Criminal Divisions). On 4 March 2008 the Plenary Court of Cassation decided to quash the judgment of the Assize Court.", "Its decision, in so far as relevant, reads as follows: “... In the criminal proceedings brought against F.Ö. under Articles 314 § 2, 53, 63, 58 § 9 of the Criminal Code (Law no. 5237) and section 5 of the Prevention of Terrorism Act (Law no. 3713) with reference to Articles 220 §§ 6 and 7 and 314 § 3 of the same Code, the first-instance court held that the accused should be convicted under section 7(2) of Law no.", "3713, section 32(1) and (3) of Law no. 2911 and not under Article 314 § 2 of the Criminal Code. The Plenary Court of Cassation (Criminal Divisions) must resolve the following issues: 1. Whether the acts of the accused which were considered to have constituted three separate crimes could also be considered to be crimes committed on behalf of an [illegal] organisation in view of the provision which reads as follows: ‘Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.’ ... In the light of the information specific to the present case file and also the general information obtained from other case files concerning the [illegal] organisation, it is considered as follows: The PKK, whose aim is to form a Marxist–Leninist state by separation of a part of the territory under the sovereignty of the Republic of Turkey by means of an armed struggle, started developing new policies involving its members and supporters abroad following the arrest of its leader Abdullah Öcalan.", "To that end, the so-called Presidential Council of the organisation held a congress (the 7th Congress) between 2 and 23 January 2000. At this congress a new action plan, namely the ‘Democratisation and Peace Project’, was adopted. Furthermore, the Central Committee was replaced by the Party Assembly while the ARGK and the ERNK were replaced by the HPG (Kurdistan People’s Defence Force) and the YDK (Kurdistan Democratic People’s Union) respectively. A new party regulation was prepared and the emblem of the organisation was also changed. In order to ensure the implementation of the decisions taken at the 7th Congress, a conference that was named as ‘the 6th National Conference’ by the PKK was held between 5 and 22 August 2000.", "In accordance with the new strategy for achieving the organisation’s main goals, an action plan of ‘Civil Disobedience’ was adopted. This non-violent action plan aimed at damaging the international reputation of the State of the Republic of Turkey and its security forces and was contrary to the legislation of the Republic of Turkey. In this regard, the following actions had been planned and implemented: (1) Submitting written petitions to university administrations by university students, who are the supporters or members of the organisation, requesting the inclusion of Kurdish in the curriculum as an elective course; (2) Creating pressure by submitting petitions to Directorates of National Education by the parents of primary and secondary school students for the use of the Kurdish language as the language of education; (3) Dressing up in traditional female Kurdish costumes (action to be organised by sympathiser groups); (4) Applying to courts or population registration offices and requesting to have ‘Kurdish’ written on identity cards; (5) Filing applications containing the phrase ‘I also am a member of the PKK and I support its new strategy’; (6) Extending the campaign for ‘education in Kurdish’, which had been pursued at the universities, to primary schools and high schools, by the PKK’s so-called Presidency Council. At the 8th Congress held between 4 and 10 April 2002, the name PKK was changed to KADEK (Kongra Azadi U Demokrasi A Kürdistane – Kurdistan Freedom and Democracy Congress) and this congress was declared as the ‘1st Foundation Congress’. Following this congress, a number of NGOs started to voice requests for ‘education in mother tongue, prohibition of death penalty, general amnesty and permission to publish in the Kurdish language’ in every arena.", "At the 9th Congress held between 26 October and 15 November 2003, the name KADEK was changed to KONGRA-GEL (Kurdish People’s Congress) and this congress was declared as the 1st Foundation Congress. Following this congress, throughout 2003 the organisation continued the aforementioned campaigns in accordance with the civil obedience movement (Siyasi Serhildan). In this regard: (1) Between 16 and 26 May 2004 the PKK held its 10th Congress, which is named as the 2nd Extraordinary Congress, on Mount Kandil in Northern Iraq, and decided to re-activate the militants of the HPG, the organisation’s armed wing, due to the weakening of Abdullah Öcalan’s influence as a result of the polarisations within the organisation, the inclusion of KONGRA-GEL in the list of terrorist organisations by the European Union, the failure to achieve the expected success within the past five years and in order to unify the organisation’s supporter base by reasserting the requests for a general amnesty, legalisation of the [organisation’s] political activities and constitutional recognition of the Kurdish cultural identity. It was further decided to carry out (armed) actions as a reprisal for the losses suffered during military operations launched against the organisation. It was also decided to bring forward the following issues via the individuals and NGOs sympathising with the organisation in order to shape public opinion and to apply pressure on the State in the international arena: 1.", "Adoption of a general amnesty; 2. Release of the leader of the terrorist organisation from prison; 3. Recognition of constitutional citizenship rights for Kurdish people; 4. Declaration of a ceasefire by both parties and establishment of peace; 5. Urging the State to take concrete steps concerning the Kurdish issue and the release of Abdullah Öcalan in order to maintain a conflict-free environment.", "The organisation also reverted back to its original name of ‘PKK’ (Partiye Karkerani Kürdistan – Kurdistan Workers’ Party) on 4 April 2005, the birthday of Abdullah Öcalan, who is still serving a prison sentence. (2) On 24 March 2006 fourteen PKK militants were killed in the Şenyayla region in the proximity of Solhan district, called Senyayla, during a military operation carried out by security forces of the 49th Internal Security Infantry Brigade Command and Bingöl Provincial Gendarmerie Command in the region encompassing Bingöl and Muş provinces. Following the autopsy and forensic procedures carried out in Malatya, the remains of four of the militants were released to their families in order to be buried in Diyarbakır. On 28 March 2006 at around 7 a.m., the remains were taken to Şerif Efendi Mosque, located on Bağlar Medine Boulevard, where around 1500-2000 people had gathered. The crowd blocked the traffic; carried the coffins, chanted separatist and violent slogans in support of the organisation and its leader in Turkish and Kurdish and sang the organisation’s so-called youth march, the ‘Hernepeş’ (Forward).", "Furthermore, some of the demonstrators burned tyres on the road and some masked and unmasked protestors waved posters of Abdullah Öcalan and banners of the organisation. A banner of 2 x 1 metres in size containing the phrases ‘Martyrs are our honour’ and ‘PKK’ in capital letters was also held up. Despite the warnings of the security forces that the demonstrators should not chant illegal slogans, disseminate propaganda in support of the organisation and wave illegal flags, the crowd got agitated and started throwing stones at the police officers on duty, injured a number of police officers and caused extensive material damage to State buildings and vehicles, banks, shops and vehicles belonging to private individuals, by throwing stones and Molotov cocktails. The demonstrations continued on 29, 30 and 31 March, as the protesters burned numerous vehicles, looted local businesses, hurled Molotov cocktails particularly at open shops, blocked the roads and attacked police officers and police vehicles with stones, bats and Molotov cocktails, staged an arson attack on a bank building and took down and burned a Turkish flag. Prior to these demonstrations, some media organs controlled by the PKK had called for mass protests.", "In this respect, Fırat News Agency published the following statements made on behalf of the PKK People’s Defence Committee by T.K., a high-level executive of the organisation, on its homepage: ‘...Kurdish people have clearly, openly demonstrated their determination and persistence in their requests for freedom and democracy and in supporting the leader A. It is without doubt that Kurdish people will carry on the resistance in various ways throughout the year. It must be understood that the proletarian people, especially the Kurdish youth and women, are determined to turn 2006 into a year of civil disobedience (Serhildan) with the motto “freedom and democratic solutions for the Kurdish issue”. Newroz has been one of its [the civil disobedience] most important, most glorious peaks. At the moment, on account of our day and our week of heroism, our people have been carrying on their democratic actions with a view to remembering, embracing and understanding our martyrs.", "This will continue throughout the month of April...’ Similarly, on the web page of the HPG, statements summoning the people to partake in actions of civil disobedience called ‘serhildan’ had been published: ‘Amed[5] ...! They have launched a full scale war against you. They have resorted to all of the dirty tools of war, ranging from drug addicts to prostitutes, from thinner addicts to bag-snatchers, from batons to torture, from bullets to genocide... You must know these. You must know and rise up: The military, the police, the MIT (the Turkish intelligence agency), the JITEM (Gendarmerie Intelligence and Counter-Terrorism), they are all gangs of executioners...’ The Kurdish organisation Komalen Ciwan close to the PKK issued the following statement on its Internet homepage: ‘... As the Kurdish people celebrate Newroz in a spirit of peace, the belligerent security forces continue their massacres against our people with chemical weapons. Most recently we have been shaken by the massacre of fourteen guerrillas – heroic children of our people in Muş.", "We are enduring a deep agony. It is the debt of honour of the Kurdish people and the people of A ... to protest against this massacre and to look out for the brave insurgents of the Kurdish people. For this reason, on 28th of March, in a way that befits our week of heroism, we are calling our people to down their shutters, not to work and to collectively attend the funeral in an effort to embrace our six martyrs...’ On 27 March 2006 brochures containing the same statements were handed out to the public in various locations in Diyarbakır. Along with these web sites which are the media organs of the organisation [the PKK], Roj TV, which is the ‘voice’ of the organisation, created tension within society with its frequent broadcasts calling the people to stop going to work, to close down their businesses and not to send their children to school. People who attended the funerals of the deceased PKK members carried out the said actions.", "Similarly, the protests spread to many other cities and districts, notably Batman, Siirt, Istanbul and Mersin. Throughout the nationwide protests, above two hundred police officers were injured; several cars were burned; the windows of an indeterminate number of shops were smashed and many State buildings were set on fire. 9 people died during the events, whereas 41 persons were injured. Archive records of 400 people who were apprehended in relation to the incidents in Diyarbakir reveal that a number of them had previously been investigated on charges of membership of the PKK, aiding the PKK, and disseminating propaganda in support of that organisation. Some of them had been previously convicted on charges such as usurpation and robbery and they tried to take advantage of the chaotic atmosphere which lasted for 3 to 4 days.", "Out of 77 people who had participated in the protests and who were taken into custody, 26 were younger than 18 years old. F.Ö., who had participated in the protests which occurred upon the PKK’s appeals and instructions, was apprehended on 5 May 2006. It has been established beyond any doubt, in the light of the incident reports, reports containing a description of the events on the basis of police video recordings, video footage and photographs, that the accused were involved in the following incidents, apart from the events of 28 April 2006: – Participation in the funeral of E.E., a member of the PKK who had been killed on 26 February 2006. The accused carried the deceased terrorist’s coffin, sang the PKK’s so-called anthem ‘Hernepeş’, chanted slogans praising the PKK and its so-called leader, such as ‘Öcalan Öcalan, Öcalan is our political will’, ‘Kurdistan will be the grave for fascism’ and ‘Guerrilla strikes to found Kurdistan’ and directed the group; – Participation in the Newroz celebrations held in Diyarbakır Fairground on 21 March 2006. The accused was among a group of people who attacked the police officers at the control points at the entrances to the fairground, destroyed the barriers and carried the flags symbolising PKK and the posters of its so-called leader.", "The accused directed the group and 10 police officers were injured. The dispute to be resolved by the Plenary Court of Cassation (Criminal Divisions) is whether the accused’s acts (participation in illegal demonstrations of 26 February, 21 March and 28 March 2006, specially held upon the appeals by the PKK in accordance with the latter’s general invitation for demonstrations and with its new strategy; leading a group of demonstrators carrying symbols of the PKK and posters of Abdullah Öcalan; giving instruction to the demonstrators to attack the police; attack on the police; being in a group of people who received the remains of members of the organisation killed by the security forces during operations in line with the calls of the PKK and making a victory sign; chanting slogans such as ‘Öcalan is our political will’, ‘Our leader is our political will’ and ‘Guerrilla strikes to found Kurdistan; directing a group that lit a fire on a road and blocked the traffic, which constitute independent offences, can also be considered offences committed on behalf of the organisation. Article 314 § 3 of the Criminal Code (Law no. 5237), which entered into force on 1 June 2005, reads as follows: ‘(3) Other provisions relating to the offence of establishing organisations for the purpose of criminal activity are also applicable for this offence.’ Article 220 § 6 of the Criminal Code reads as follows: ‘(6) Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.’ ... The aforementioned provision reflects an approach that is utterly different from the approach of the former Criminal Code (Law no.", "765). According to this provision, the offences committed in line with an [illegal] organisation’s activities impose further criminal responsibility. Acts of aiding are also considered as membership of an organisation. A separate offence of aiding an [illegal] organisation was not envisaged. Aiding an organisation by way of providing weapons was proscribed in a separate provision, i.e.", "Article 315, having regard to the gravity of that offence. Other acts of aiding were proscribed in Articles 220 and 314 of the same Code. In the circumstances of the present case, the [illegal] organisation’s public call has been made concrete through broadcasts from media organs of the organisation and there is no need for such calls to target identified individual persons. It is established that the acts carried out on behalf of the organisation were within the knowledge of the organisation and in line with its will. The acts of an accused who participates in these acts carried out on behalf of the organisation constitute a breach of Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the Criminal Code, along with the breaches of criminal law provisions.", "Thus, the judgment [of the first-instance court] must be quashed. ...” III. RELEVANT INTERNATIONAL MATERIALS A. United Nations Documents 1. The United Nations Convention on the Rights of the Child 60.", "The Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law vis-à-vis the Contracting States, including all of the member States of the Council of Europe. Article 1 of the Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Article 3 § 1 reads: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 reads, in so far as relevant, as follows: “States Parties shall ensure that: ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age ...;” The relevant part of Article 40 provides: “1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. ... 3.", "States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: ... (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.” 2. General Comment No. 10 (2007) of the United Nations Committee on the Rights of the Child (CRC/C/GC/10) 61.", "The relevant part of the General Comment No. 10 of the Committee on the Rights of the Child, dated 25 April 2007, reads: “23. Children in conflict with the law, including child recidivists, have the right to be treated in ways that promote their reintegration and the child’s assuming a constructive role in society (art. 40 (1) of CRC). The arrest, detention or imprisonment of a child may be used only as a measure of last resort (art.", "37 (b)). It is, therefore, necessary - as part of a comprehensive policy for juvenile justice - to develop and implement a wide range of measures to ensure that children are dealt with in a manner appropriate to their well-being, and proportionate to both their circumstances and the offence committed. These should include care, guidance and supervision, counselling, probation, foster care, educational and training programmes, and other alternatives to institutional care (art. 40 (4)). ... 28.", "When judicial proceedings are initiated by the competent authority (usually the prosecutor’s office), the principles of a fair and just trial must be applied... At the same time, the juvenile justice system should provide for ample opportunities to deal with children in conflict with the law by using social and/or educational measures, and to strictly limit the use of deprivation of liberty, and in particular pre-trial detention, as a measure of last resort. In the disposition phase of the proceedings, deprivation of liberty must be used only as a measure of last resort and for the shortest appropriate period of time (art. 37 (b)). This means that States parties should have in place a well-trained probation service to allow for the maximum and effective use of measures such as guidance and supervision orders, probation, community monitoring or day report centres, and the possibility of early release from detention. ... 71.", "The Committee wishes to emphasize that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in article 40 (1) of CRC...” 3. Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (CRC/C/TUR/CO/2-3) 62. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (CRC/C/TUR/CO/2‑3), dated 30 July 2012, states as follows: “Freedom of association and peaceful assembly ... 39. The Committee recommends that the State party continue its efforts to ensure full enjoyment of the freedoms of expression, association and peaceful assembly by children by amending its legislation to remove the remaining obstacles to these rights, including the minimum age for forming an organisational committee for outdoor meetings.", "The Committee further recommends that the State party take all measures to remove other obstacles in the procedures and facilitate the process to ensure that children are able to exercise their rights in accordance with the law. ... Administration of juvenile justice 66. The Committee commends the State party for its extensive reforms in the area of juvenile justice, including new legislative changes resulting in the increase of the age of criminal liability from 11 to 12 years, requiring all persons under the age of 18, including those charged under the Counter-terrorism Law, to be considered in juvenile courts; introducing reduced sentences for children and special measures for children who are pushed into crime; as well as establishing child prisons, child prosecutors and child police. However, the Committee is concerned at the following: (a) Insufficient number of professionals working in the juvenile justice system; (b) Poor quality of legal assistance provided to children under the free legal aid programme, due to the low compensation for lawyers; (c) Long duration of trials involving children, resulting in large numbers of children in pre-trial detention, compared to children serving sentences; (d) Unduly heavy penalties against children and lack of alternative measures; (e) Reports that amendments to the Counter-terrorism Law are not upheld in practice, as children detained during demonstrations are initially held together with adults; (f) Long detention periods and poor conditions in some prisons; ... 67. The Committee recommends that the State party bring the juvenile justice system fully in line with the Convention on the Rights of the Child, in particular articles 37, 39 and 40, and with other relevant standards, including the Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), the Vienna Guidelines for Action on Children in the Criminal Justice System and the Committee’s general comment No.", "10 (2007) on the rights of the child in juvenile justice. In particular, the Committee urges the State party to: (a) Increase the number of professionals working in the juvenile justice system; (b) Take measures to provide incentives for lawyers to work on cases involving children; (c) Expedite the investigation and trial process in cases involving children, so as to reduce the number of children in pre-trial detention; (d) Take immediate measures to ensure that the detention of children is used as a last resort and that alternative measures are applied for children; (e) Ensure enforcement of the amendments to the Counter-terrorism Law and ensure that children detained and charged under this law are provided with all basic legal guarantees; ...” B. Council of Europe documents 1. Resolution 2010 (2014) of the Parliamentary Assembly of the Council of Europe 63. In its Resolution 2010 (2014), adopted on 27 June 2014 and entitled “Child-friendly juvenile justice: from rhetoric to reality”, the Parliamentary Assembly of the Council of Europe states the following: “... 6.", "In particular, the Assembly calls on the member States to: 6.1. establish a specialised juvenile justice system by means of dedicated laws, procedures and institutions for children in conflict with the law, inter alia the institution of a Children’s ombudsperson, following the positive practice of some member States; 6.2. set the minimum age of criminal responsibility at at least14 years of age, while establishing a range of suitable alternatives to formal prosecution for younger offenders; 6.3. prohibit exceptions to the minimum age of criminal responsibility, even for serious offences; 6.4. ensure that detention of juveniles is used as a measure of last resort and for the shortest possible period of time, in particular by: 6.4.1. determining an age limit below which it is not permitted to deprive a child of his or her liberty, preferably higher than the minimum age of criminal responsibility; 6.4.2. developing a broad range of alternative non-custodial measures and sanctions to pre-trial detention and post-trial incarceration, including educational measures, community sanctions and treatment programmes; 6.4.3. abolishing life imprisonment of any kind for children; 6.4.4. establishing a reasonable maximum period to which a child may be sentenced; 6.4.5. providing regular reviews of custodial measures and/or sanctions a child may be subjected to; 6.5. ensure that deprivation of liberty, used only as a measure of last resort, aims at rehabilitating and reintegrating children into society, in particular by providing appropriate training and treatment programmes; 6.6. develop a broad range of diversion programmes, respecting human rights standards and based, inter alia, on principles of restorative justice, with a view to dealing with juvenile offenders without resorting to judicial proceedings; 6.7. decriminalise status offences, which are acts classified as offences only when committed by children; 6.8. ensure that all actors involved in the administration of juvenile justice receive appropriate training, with a view to guaranteeing an effective implementation of children’s rights in this context; 6.9. prevent the detention of young offenders by, inter alia, introducing a system of rapid intervention with the aim of allowing a multi-professional team, including the police, social workers, psychiatric nurses and youth workers, to facilitate the investigation of crimes committed by young offenders and to offer them and their families support and rehabilitation. ...” 2. Recommendation R (87) 20 of the Committee of Ministers of the Council of Europe 64. The recommendation of the Committee of Ministers to member States of the Council of Europe on social reactions to juvenile delinquency (R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 7. to excluding the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals...” 3. Recommendation CM/Rec(2008)11 of the Committee of Ministers of the Council of Europe 65.", "The Recommendation on the European Rules for juvenile offenders subject to sanctions or measures (CM/Rec(2008)11), adopted by the Committee of Ministers on 5 November 2008, reads, in so far as relevant, as follows: “A. Basic principles ... 5. The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports. ... 10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible.", "Special efforts must be undertaken to avoid pre-trial detention. ...” 4. Reports of the Commissioner for Human Rights of the Council of Europe 66. In his report published on 1 October 2009, following his visit to Turkey on 28 June to 3 July 2009 (CommDH(2009)30), Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, stated the following: “... 35. During his visit to Turkey, the Commissioner was informed that over the previous nine months approximately 250 children of Kurdish origin, more than 190 of them between 13 and 17 years of age, had been arrested and detained, after having taken part in demonstrations organized by Kurdish groups and thrown stones at police forces.", "In particular he has been informed that four children aged between 16 and 17 have been detained in the Diyarbakır prison since 14 July 2008, charged with membership of a terrorist organization as a result of participating in a protest in the above town. 36. NGOs that met with the Commissioner during his visit indicated that prosecution in such cases is often based on Article 220, paragraph 6, of the Criminal Code which provides that any person who commits an offence on behalf of an illegal organisation, even though they are not a member of the organization, shall be sentenced for the offence as well as for membership of the organization. The extensive use of this provision by courts against participants of Kurdish-related demonstrations follows a ruling of the General Criminal Board of the Court of Cassation in March 2008 which indicated that persons participating in demonstrations following public calls by the illegal organization PKK should be brought into the ambit, inter alia, of the above provision of the Criminal Code... 167. It appears necessary to revisit certain over-restrictive provisions of the legislation concerning elections, political parties and broadcasting, as well as criminal law provisions, such as the Criminal Code Articles 301 and 220 which have been used in a number of occasions in a manner that has unjustifiably suppressed freedom of expression...” 67.", "In his report published on 12 July 2011, following his visit to Turkey on 27 to 29 April 2011 (CommDH(2011)25), Mr Thomas Hammarberg stated the following: “... 18. Following his 2009 visit the Commissioner expressed his deep concern about the application of Article 220 of the Criminal Code, and in particular its paragraphs 6 and 8, and considers that this concern remains valid in the context of freedom of expression and freedom of the media in Turkey...” 68. In his report published on 10 January 2012, following his visit to Turkey on 10 to 14 October 2011 (CommDH(2012)2), Mr Thomas Hammarberg stated the following: “... 63. In his 2009 report on Turkey, the Commissioner expressed his concerns about the interpretation and application of the Turkish Anti-Terrorism Act (Act No. 3713) and certain provisions of the TCC, notably Article 220 dealing with criminal organisations.", "The Commissioner was particularly preoccupied by the wide interpretation of the courts concerning the definition of offences and their constitutive acts under the above provisions. 64. Pursuant to Article 220 TCC, a person shall be punished as a member of a criminal organisation, even if they are not a member of that organisation or part of its hierarchical structure, if they commit an offence on behalf of that organisation (paragraph 6), or help it knowingly and willingly (paragraph 7). The Commissioner had noted in his 2009 Report that persons participating in demonstrations following public calls by the illegal organization PKK were brought into the ambit of paragraph 6, in accordance with a ruling of the Court of Cassation in March 2008... 67. The Commissioner observes that the application of Article 220 TCC, as well as of Articles 6 and 7 of the Anti-Terrorism Act, continues to raise serious concerns... 68.", "The Commissioner is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organisations, as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. He wishes to underline, however, that a major lesson learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system. This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organisations. 69.", "In this connection, it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism, and that restrictions of human rights in the fight against terrorism ‘must be defined as precisely as possible and be necessary and proportionate to the aim pursued’. 70. The Commissioner considers that the provisions contained in the Turkish anti-terror legislation and Article 220 TCC allow for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner encourages the Turkish authorities to reflect on and address these concerns through legislative measures and/or case-law.” 69. On 20 February 2012 Mr Thomas Hammarberg published his comments concerning a draft law presented to the Parliament of Turkey by the Government, which envisaged amendments to various legal provisions, including Article 220 of the Criminal Code.", "The draft law in question was subsequently adopted on 2 July 2012 (Law no. 6352). In his comments, the former Commissioner for Human Rights considered as follows: “... 16. The proposed amendments to Article 220 TCC (Article 65 of the Bill) could be considered in conjunction with the previous amendment. These amendments concern paragraphs 6 and 7 of Article 220 TCC, which provide that a person shall be punished as a member of a criminal organisation, even if they are not a member of that organisation or part of its hierarchical structure, if they commit an offence on behalf of that organisation (paragraph 6), or help it knowingly and willingly (paragraph 7).", "With these amendments, the penalty is reduced by half for paragraph 6, and may be reduced by up to two thirds for paragraph 7. This would potentially allow persons being tried for these offences, especially where the criminal organisation is considered to fall under the scope of Article 314 TCC on armed criminal organisations, to benefit from alternative measures to remand in custody. 17. While acknowledging that this amendment can have short-term benefits for a number of ongoing trials, the Commissioner considers that it does not offer a lasting solution to serious problems caused by Article 220. As previously highlighted by the Commissioner, his main concern relating to Article 220 is the fact that it allows for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation.", "The Commissioner considers that this issue calls for a more substantial review of the definition of the offences concerned, and encourages the Turkish authorities to tackle this question in the context of their future reform package, along with other legislative problems identified by the Commissioner in his reports on Turkey.” C. Non-governmental Organisations’ Reports 1. Report of Human Rights Watch of 1 November 2010 70. On 1 November 2010 the Human Rights Watch published a report entitled “Protesting as a Terrorist Offence / The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey”. The 75-page report mainly concerned trials and convictions of demonstrators in Turkey under Laws nos. 5237, 2911 and 3713.", "The report, in so far as relevant, reads as follows: “In Turkey, many hundreds of people currently face prosecution, or are serving substantial sentences for terrorism convictions. Their ‘crime’ was to engage in peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have allowed courts in Turkey to convict demonstrators under the harshest terrorism laws, by invoking two articles of the Turkish Penal Code in combination with the Anti-Terror Law. In July 2010, as this report was being finalized, the government passed legal amendments to improve the treatment of child demonstrators... ... There are ... fairly frequent localized protests in cities throughout southeast Turkey and in mainly Kurdish-populated districts of cities such as Adana.", "These typically involve groups of youths and children, who shout pro-Öcalan and PKK slogans, burn tires in the street, and respond to police orders to disperse by throwing stones. In the past, courts in Turkey convicted these protestors under laws governing public order or of ‘making propaganda for a terrorist organization’ (Article 7/2, Anti-Terror Law). Yet in recent years, criminal justice officials have deemed Kurdish protestors demonstrating against Turkey’s policies towards the Kurds to be ‘committing crimes on behalf of the PKK without being a member of that organization’ (Article 220/6, Turkish Penal Code). As a result, they are prosecuted as if they were actually fighting the government as armed ‘members’ of the PKK (Article 314/2, Turkish Penal Code). These serious charges, on top of more usual charges under the Law on Demonstrations and Public Assemblies, could result in sentences of 28 years in prison, or more, if there are repeated offenses.", "To date, the majority of adults convicted under these laws have received prison terms of between seven and 15 years. Prior to a July 2010 legal amendment, child protestors typically received prison sentences of between four and five years, though in 2010, at least several children were sentenced to seven-and-a-half years in prison. Law enforcement authorities and the courts allege that the PKK and its representatives are organizing the demonstrations as part of a wider policy to promote civil unrest, and even uprising, among Kurds in towns and cities throughout Turkey. By way of evidence the government and courts point to the PKK’s decrees issued at various congresses, and the fact that senior PKK representatives use sympathetic media outlets to issue ‘appeals’ to the Kurdish population to take to the streets in protest. Hence, the template for individual indictments includes an abstract overview of PKK history and policies, followed by a statement of the alleged specific criminal activities of the defendant.", "In none of the cases examined by Human Rights Watch had prosecutors submitted evidence to establish that the individual defendant either heard the PKK’s ‘appeal’ or had been directly instructed or motivated by the PKK to participate in the demonstration, much less that the individual had any other specific link with the PKK or committed a crime under its orders. The Turkish courts consider it no obstacle to conviction that the prosecution has failed to provide evidence of the defendant’s specific intent to support or aid the illegal activities of the PKK. The General Penal Board of the Court of Cassation has held that it is sufficient to show that sympathetic media outlets broadcast the PKK’s ‘appeals’ – speeches by the PKK leadership calling on the Kurdish population to protest or raise their voices on various issues. Then the defendant, by joining the demonstration, is assumed to have acted directly under PKK orders. Yet even at extremely local demonstrations not announced in the media beforehand, protestors are routinely charged with acting under the orders of the PKK.", "In some cases, courts have held that the PKK’s ‘appeal’ to participate in demonstrations is a continuous generic one, and therefore a specific instance of appeal to the population need not be proved. This legal framework makes no distinction between an armed PKK combatant and a civilian demonstrator. ... On July 22, 2010, after civil society groups campaigned extensively against the prosecution of children under terrorism laws, the Turkish parliament adopted several amendments to limit the applicability of such laws to child demonstrators. Law no. 6008, published in the Official Gazette on July 25, 2010, states that all children will henceforth stand trial in juvenile courts, or adult courts acting as juvenile courts; child demonstrators ‘who commit propaganda crimes’ or resist dispersal by the police will not be charged with ‘committing crimes on behalf of a terrorist organization’ and hence ‘membership in a terrorist organization’ and children will not face aggravated penalties, and may benefit from sentence postponements and similar measures for public order offenses.", "The amendments also reduce penalties for both children and adults for forcibly resisting police dispersal and offering ‘armed resistance,’ including with stones, during demonstrations under the Law on Demonstrations and Public Meetings. Yet the new law omits any provision to prevent children from being charged with ‘making propaganda for a terrorist organization’ (either under Article 7/2 of the Anti-Terror Law or Article 220/8 of the Turkish Penal Code). ...” 2. Reports of Amnesty International 71. The report of Amnesty International published on 17 June 2010, entitled “All Children Have Rights / End Unfair Prosecutions of Children under Anti-terrorism Legislation in Turkey” concerned the rights of the children who are arrested, detained and tried under Laws nos.", "5237, 2911 and 3713 on account of their participation in demonstrations. The report reads, in so far as relevant: “...While comprehensive statistics regarding the number of children prosecuted under antiterrorism legislation following demonstrations is not available, official statistics show that prosecutions were initiated against 513 children under Article 314 of the Penal Code which criminalizes leadership or membership of an armed organization in 2006-7 and against 737 children under the Anti-Terrorism Law during the same period. Following a parliamentary question tabled by a Member of Parliament Sevahir Bayındır in May 2009, the Justice Ministry in a written answer in December 2009 stated that from 2006-8 prosecutions were initiated against 1,308 children under the Anti-Terrorism Law and 719 children under Article 314 of the Penal Code. ... Children alleged to have participated in the demonstrations are frequently prosecuted under the Anti-Terrorism Law, specifically Article 7/2 which criminalizes making propaganda for a terrorist organization, and under Article 314 of the Penal Code via Article 220/6 of the Penal Code that criminalizes those who commit crimes in the name of a terrorist organization additionally, as if they were members of the organization. In a lesser number of cases Article 220/7 of the Penal Code is applied which states: ‘persons knowingly and willingly assisting the organization but not within the hierarchical structure of the organization are punished as members of the organization’.", "This application of the law followed a ruling of the Supreme Court of Appeals (case number 2007/9282). The Court considered that the tactics of the PKK were to make use of civil disobedience. In this context the Court ruled that in demonstrations publicized by media organizations regarded by the Turkish state to be associated with the PKK, such as Roj TV and Fırat News Agency, those that participate in demonstrations could be said to be acting on behalf of a terrorist organization. Children, who have been prosecuted in connection with their participation in the demonstrations, have frequently faced multiple charges for the same act including making propaganda for a terrorist organization, membership of a terrorist organization and, in addition, violation of the Law on Meetings and Demonstrations. ...", "Under the Convention on the Rights of the Child, which applies to everyone under 18, states are required to establish laws, procedures, authorities and institutions specifically applicable to children accused of infringing the penal law. The UN Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), adopted by the UN General Assembly in November 1985, stipulate in particular that proceedings for children should be conducive to the best interests of the child and shall be conducted in an atmosphere of understanding allowing them to participate and to express themselves freely, and that the well-being of the child should be the guiding factor in the consideration of the case. Amnesty International is concerned that by law, children aged 15-17 are tried in Special Heavy Penal courts under the same procedures as adults for terrorism-related offences. Article 9 of the Anti-Terrorism Law stipulates that children aged 15 and above are tried in Special Heavy Penal Courts for prosecutions brought under anti-terrorism legislation... The courts follow the same procedures as for the prosecution of adults save for the fact that the hearings are closed to the public.", "...” 72. On 27 March 2013 Amnesty International published a report entitled “Turkey: Decriminalize Dissent / Time to deliver on the Right to Freedom of Expression”. The relevant passages of the report read as follows: “Article 220/6: Committing a crime in the name of a terrorist organization Article 220/6 of the Turkish Penal Code allows the state to punish individuals who have not been proven in court to be members of terrorist organization as though they were, if deemed to have performed a criminal act “in the name of an organization”. In full, the Article reads: ‘A person who commits a crime in the name of an organization without being a member of that organization is punished as a member of the organization. The punishment for membership of an organization can be reduced by up to one half.’ Courts have used this Article as the basis for imposing increased sentences for supposedly criminal activity with little evidence, either of the commission of a recognizably criminal offence or any demonstrable link to a ‘terrorist organization’.", "As with direct membership cases, the evidence presented for having committed a crime ‘in the name of an organization’ frequently amounts to nothing more than participation in demonstrations, or the writing of pro-Kurdish articles. ... Amnesty International considers that 220/6 is neither necessary for the prosecution of individuals for genuinely terrorist-related offences, nor, in practice, applied in such a way as to uphold the right to freedom of expression. Amnesty International therefore recommends that the Article be repealed and that legitimate prosecutions be brought instead under other, existing Penal Code articles requiring proof of membership or intent to assist a terrorist organization.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 73. The applicant complained about his conviction for participating in a demonstration and the allegedly disproportionate sentences imposed on him.", "He relied on Articles 6, 9 and 10 of the Convention. 74. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Zorica Jovanović v. Serbia, no.", "21794/08, § 43, ECHR 2013). 75. The Court notes that, in the circumstances of the present case, Article 10 is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007; Kasparov and Others v. Russia, no.", "21613/07, § 82, 3 October 2013; and Lütfiye Zengin and Others v. Turkey, no. 36443/06, § 35, 14 April 2015). The Court also observes that the applicant’s submissions under Articles 6 and 9 of the Convention essentially concern the alleged breach of his right to freedom of assembly. Accordingly, the Court will examine these complaints from the standpoint of Article 11 of the Convention. 76.", "However, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Ezelin, cited above, § 37; Galstyan, cited above, § 96; and Kasparov and Others, cited above, § 83). Article 11 of the Convention reads as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.", "No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 77. The Government contested the applicant’s allegations. A. Admissibility 78. The Court considers that the issue of the applicant’s “victim status” is closely linked to the merits of the applicant’s complaints under this head.", "It therefore joins this issue to the merits. The Court further notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions (a) The applicant 79. The applicant submitted that he had been convicted under Article 314 § 2 of the Criminal Code with reference to Articles 220 § 6 and 314 § 3 of the same Code despite the fact that he had not been a member of any illegal organisation and that there had been no evidence in the case file showing that the demonstration of 14 July 2008 had been held upon the instructions of the PKK. The applicant stated that it had not been established that the calls published on different websites emanated from the PKK as alleged. He contended that, in any event, in order to be convicted of membership of an illegal organisation under Article 314 § 2 of the Criminal Code, with reference to Article 220 § 6, a person should receive a personalised call from an illegal organisation to commit a specific offence on its behalf.", "As the appeal which allegedly emanated from the PKK was an abstract and generalised appeal, containing no call to commit any offence, he should not have been convicted of committing an offence on behalf of the organisation or, accordingly, for membership of an illegal organisation. 80. The applicant further contended that propaganda should be defined as influencing a person or a group of people about a certain opinion or attempting to convince them about the veracity of that opinion. Besides, for an offence of dissemination of propaganda to be made out, the person should have the intention of disseminating propaganda. According to the applicant, in the light of the aforementioned explanation, he could not be considered as having committed the offence of disseminating propaganda in support of a terrorist organisation in breach of section 7(2) of Law no.", "3713. He further had not used a weapon when taking part in the demonstration as maintained in the judgment convicting him, pursuant to sections 23(b) and 33(c) of Law no. 2911. He had thrown pebbles at the security forces after the latter had launched an attack on the demonstrators. The applicant finally considered that, even assuming that he had committed the offences in question, only one sentence should have been imposed on him and that he had been disproportionately sentenced.", "(b) The Government 81. In their submissions dated 13 March 2013, the Government stated at the outset that there had been an interference with the applicant’s right to freedom of assembly as he had been taken into police custody and subsequently convicted for his participation in a demonstration organised in support of the PKK. 82. The Government further submitted that the interference in question had been prescribed by law. They noted in this regard that the applicant’s conviction had been based on section 23(b) of Law no.", "2911 and Articles 220 § 6 and 314 § 2 of the Criminal Code. According to the Government, these provisions, and in particular Article 220 § 6 of the Criminal Code, fulfilled the requirement of “foreseeability” for the purposes of Article 11 of the Convention. 83. With regard to the applicant’s conviction under Article 220 § 6 of the Criminal Code, the Government contended that the applicant had deliberately taken part in the demonstration held in Diyarbakır on 14 July 2008 in support of a terrorist and armed criminal organisation, following the publication of a call for participation on the website of the Fırat News Agency, which was considered to be the voice of the PKK. The Government noted that the applicant had not denied the fact that he had participated in the demonstration.", "He had, however, denied being a member of the PKK. Thus, the charges brought against him under Article 220 § 6 of the Criminal Code were in conformity with the domestic law, given that he had not been an active and permanent member of the PKK. 84. The Government contended that criminal proceedings were brought against both adults and minors who had committed the offence proscribed by Article 220 § 6 of the Criminal Code. However, being a minor was a mitigating circumstance under Article 31 § 3 of the Criminal Code.", "85. The Government also stated that all illegal activities allowing terrorist organisations to achieve their aims would be considered to be acts committed on behalf of those organisations. The Government further noted that the expression “committing a crime” was deemed to refer to an offence proscribed by one of the criminal codes in Turkish law. 86. Referring to the Court’s judgment in the case of Leyla Şahin v. Turkey ([GC], no.", "44774/98, § 98, ECHR 2005‑XI), the Government submitted, in particular, that Article 220 § 6 of the Criminal Code, read in the light of the decision of the Plenary Court of Cassation (Criminal Divisions) dated 4 March 2008 (see paragraphs 56-59 above) was sufficiently precise in its terms as to satisfy the requirement of foreseeability. According to the Government, an applicant who threw stones at the security forces during a demonstration organised in support of a terrorist organisation and who accepted that he had committed that act should have been aware of the fact that his acts would be punished. In the Government’s view, the applicant was aware of the consequences of his acts having regard, in particular, to the fact that other demonstrators had knocked over waste containers, thrown stones at the police and destroyed cars and shop windows. The Government therefore concluded that the interference with the applicant’s right to freedom of assembly had a legal basis in domestic law. 87.", "As to the question of a “legitimate aim”, the Government contended that the interference in question pursued the aims of protecting public order and the rights and freedom of others. They further submitted that the national authorities had a positive obligation to take reasonable and appropriate measures to protect people and public order during public demonstrations. 88. As to the question of the necessity of the interference in a democratic society, the Government submitted at the outset that the demonstration in issue had been illegal as the organisers had failed to notify the national authorities of its existence in accordance with the provisions of Law no. 2911.", "The Government considered that while individuals who held demonstrations without giving prior notification to the national authorities had the right to hold peaceful gatherings and to express their opinions without intervention by the security forces, they should be prepared to be sanctioned for failing to comply with the requirement of prior notification. In this regard, the Government referred to the national authorities’ duty to take the necessary measures in order to guarantee the smooth conduct of legal demonstrations and the security of all citizens. 89. The Government further contended that the interference in the present case had been necessary given that the applicant had not only been convicted on account of participation in an illegal demonstration but also for throwing stones at the police. They noted that the applicant and the other demonstrators had been asked to disperse, but had refused to do so.", "90. The Government finally stated that at the time of the submission of their observations, that is to say on 13 March 2013, the re-assessment of the applicant’s sentence was pending and therefore the proportionality of the penalties imposed on the applicant could not and should not be assessed by the Court. On 20 June 2014 the Government submitted the judgment of Diyarbakır Juvenile Court dated 20 December 2012, upon the request of the Court. However, they did not make any further submissions on the basis of the judgment of 20 December 2012. 2.", "The Court’s assessment (a) Whether there was an interference 91. The Court reiterates that an interference with the exercise of freedom of peaceful assembly does not need to amount to an outright ban, whether legal or de facto, but can consist in various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an act of assembly and those, such as punitive measures, taken afterwards (see Ezelin, cited above, § 39). Thus, the Court has considered in a number of cases that penalties imposed for taking part in a rally amounted to an interference with the right to freedom of assembly (see, for example, Ezelin, cited above, § 41; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001‑X; Mkrtchyan v. Armenia, no.", "6562/03, § 37, 11 January 2007; Galstyan, cited above, § 101; Ashughyan v Armenia, no. 33268/03, § 77, 17 July 2008; Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008; Uzunget and Others v. Turkey, no. 21831/03, § 43, 13 October 2009; and Yılmaz Yıldız and Others v. Turkey, no. 4524/06, § 34, 14 October 2014).", "92. The Court notes that it is not disputed between the parties that there was an interference with the applicant’s right to freedom of assembly. In particular, in their submissions to the Court, the Government considered that the applicant’s arrest and conviction pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code, section 7(2) of Law no. 3713 and sections 23 (b) and 33(c) of Law no. 2911 had constituted an interference with the applicant’s right to freedom of assembly.", "The Court nevertheless must examine two issues under this head. 93. Firstly, the Court observes that the applicant was arrested, detained on remand and subsequently convicted on the ground of having attended a demonstration and thrown stones at the security forces during that demonstration. The Court reiterates in this regard that in a number of cases where demonstrators had engaged in acts of violence, it held that the demonstrations in question had been within the scope of Article 11 of the Convention but that the interferences with the right guaranteed by Article 11 of the Convention were justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others. 94.", "Thus, for instance in the aforementioned case of Osmani and Others, the applicant, the mayor of a town, stated in a speech made during a public assembly his refusal to remove an Albanian flag, in defiance of a decision of the Constitutional Court. That speech triggered a fight between those citizens who wanted to remove the flag and those who wanted to keep it. After that incident, that applicant organised an armed vigil to protect the Albanian flag. The police later found weapons in the town hall and in the applicant’s flat. On the same day as they found the cache of weapons, the police were attacked by a group of about 200 people, who were armed with metal sticks and threw stones, rocks, Molotov cocktails and teargas projectiles at them.", "The Court found that in the very sensitive interethnic situation of that time the applicant’s speeches and actions had encouraged interethnic violence and violence against the police. Nonetheless, noting that the applicant was found guilty of stirring up national, racial and religious hatred, disagreement and intolerance, on account of the fact that he had organised a public meeting, the Court rejected the Government argument that Article 11 of the Convention was not applicable in that case. The Court considered that there had been an interference with the exercise of the applicant’s freedom of peaceful assembly. It then examined the necessity and the proportionality of the sanction imposed on the applicant and concluded that the applicant’s complaint under Article 11 was manifestly ill-founded. 95.", "Similarly, in the case of Protopapa v. Turkey (no. 16084/90, (§§ 104-112, 24 February 2009), where the applicant and other demonstrators had clashed with the security forces while demonstrating and had subsequently been arrested, the Court considered that there had been an interference with the applicant’s right of assembly. The Court however concluded that the interference was necessary in a democratic society as it found that the intervention of the security forces had been provoked by the demonstrators’ acts of violence and that the interference had not been disproportionate for the purposes of Article 11 § 2 (see also Vrahimi v. Turkey, no. 16078/90, §§ 111-122, 22 September 2009; Andreou Papi v. Turkey, no. 16094/90, §§ 105-116, 22 September 2009); and Asproftas v. Turkey, no.", "16079/90, §§ 103-114, 27 May 2010). 96. Finally, in the case of Taranenko v. Russia (no. 19554/05, §§ 70-71 and §§ 90-97, 15 May 2014), the applicant was part of a group of about forty people who forced their way through identity and security checks into the reception area of the President’s Administration building which was open to public. When they stormed the building, the protestors pushed one of the guards aside and jumped over furniture before locking themselves in a vacant office where they started to wave placards and to distribute leaflets out of the windows.", "The applicant was arrested, subsequently charged with participation in mass disorder in connection with her taking part in the protest action and remanded in custody for a year, at the end of which time she was convicted as charged. She was sentenced to three years’ imprisonment, suspended for three years. In those circumstances, the Court considered that the applicant’s arrest, detention and conviction constituted an interference with the right to freedom of expression. Unlike the aforementioned cases, in the case of Taranenko, the Court ultimately found a violation of Article 10 of the Convention interpreted in the light of Article 11. 97.", "In the present case, the Court observes that according to the documents in the case file the demonstration of 14 July 2008 was organised by the DTP to protest about the conditions of detention of Abdullah Öcalan. The Court notes that nothing in the case file suggests that this demonstration was not intended to be peaceful or that the organisers had violent intentions. The Court further observes that the applicant claimed that when he first joined the demonstrators, he started walking and chanting slogans with them. Thus, he had the intention of showing support for Mr Öcalan, but not of behaving violently when he started demonstrating, and these submissions were not contested by the Government. Besides, there is nothing in the domestic courts’ decisions showing that the applicant had violent intentions when he joined the demonstration.", "What is more, the charges against the applicant did not concern infliction of any bodily harm on anyone. The Court therefore accepts that during the events of 14 July 2008 the applicant enjoyed the protection of Article 11 of the Convention (compare Primov and Others v. Russia, no. 17391/06, § 156, 12 June 2014), as also acknowledged by the Government. 98. The Court must secondly address the issue of the applicant’s “victim status” under this head.", "In this connection, the Court observes that the applicant was convicted under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section 7(2) of Law no. 3713; and sections 23(b) and 33(c) of Law no. 2911 by the judgment of Diyarbakır Assize Court and sentenced to a total of seven years and six months’ imprisonment. This judgment was upheld by the Court of Cassation on 6 October 2009 (see paragraphs 18-25 above). Subsequent to the entry into force of Law no.", "6008, the applicant was released from prison on 25 July 2010 and a re-assessment of the applicant’s convictions and sentences was carried out by Diyarbakır Juvenile Court. The Juvenile Court rendered its judgment on 20 December 2012, acquitting the applicant of the charges brought against him under Article 314 § 2 of the Criminal Code and convicting him under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code (see paragraphs 35-40 above). The court also decided to suspend the pronouncement of the judgment with regard to the applicant’s convictions under the aforementioned provisions for a period of three years in accordance with Article 231 of Law no.", "5271 and section 23 of Law no. 5395. 99. The Court reiterates in this connection that a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999‑VI; Erdoğdu v. Turkey, no.", "25723/94, § 72, ECHR 2000‑VI; Müslüm Özbey v. Turkey, no. 50087/99, § 26, 21 December 2006; and Ulusoy v. Turkey, no. 52709/99, § 34, 31 July 2007). 100. In the instant case, the Court observes at the outset that the applicant was released from prison on 25 July 2010 and the content of the judgment of 20 December 2012 was more favourable to the applicant compared to that of 11 November 2008 in so far as it concerned the applicant’s conviction under Article 314 § 2 of the Criminal Code.", "However, the Court does not lose sight of the fact that the applicant was detained on remand for three months and twenty days between 21 July and 11 November 2008 and partly served his prison sentence arising from the judgment of Diyarbakır Assize Court between 11 November 2008 and 25 July 2010. Thus, the applicant was deprived of his liberty for more than two years within the context of the criminal proceedings brought against him. Besides, the judgment of 20 December 2012 neither acknowledged nor afforded redress for the alleged breach of the applicant’s right to freedom of assembly on account of his previous conviction under Article 314 § 2 of the Criminal Code. The Court therefore finds that following the judgment of 20 December 2012, the applicant did not lose his “victim” status to complain about a breach of Article 11 on account of his conviction under Article 314 § 2 of the Criminal Code by the judgment of 11 November 2008 (see, Birdal v. Turkey, no. 53047/99, § 25, 2 October 2007, and Aktan v. Turkey, no.", "20863/02, §§ 27-28, 23 September 2008). 101. The Court further observes that, in its judgment of 20 December 2012, Diyarbakır Juvenile Court did not conduct a new examination of the facts of the case when it once again convicted the applicant of dissemination of propaganda in support of a terrorist organisation and resistance to security forces. Nor did it provide reasoning for the applicant’s re-conviction of these charges. The Court therefore finds that Diyarbakır Juvenile Court adhered to the conclusions of Diyarbakır Assize Court regarding the assessment of the evidence and the establishment of the facts of the applicant’s case.", "Besides, the judgment of 20 December 2012 did not acknowledge or provide redress for the alleged breach of the applicant’s freedom of assembly on account of the applicant’s original convictions for having disseminated propaganda in support of the PKK and having resisted to the police. Thus, in the Court’s view, the re‑assessment of the applicant’s convictions and sentences as well as the application of Article 231 of Law no. 5271 did not deprive the applicant of victim status. What is more, the juvenile court’s judgment also had a deterrent effect on the applicant’s future exercise of his right guaranteed under Article 11, since the pronouncement of the applicant’s convictions under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no.", "2911 and Article 265 § 1 of the Criminal Code was suspended on condition that he did not commit another wilful offence and any failure on the applicant’s part to comply with that condition would lead to the pronouncement of these convictions and the execution of the sentences (see paragraphs 36-39 and 52 above and compare Erdoğdu, cited above, § 72; Aslı Güneş v. Turkey, no. 53916/00, § 21, 27 September 2005; Ulusoy, cited above, §§ 32-35; İsak Tepe v. Turkey, no. 17129/02, § 14, 21 October 2008; Lütfiye Zengin and Others, cited above, §§ 44 and 58). 102. Having regard to the above, the Court considers that the judgments of 11 November 2008 and 20 December 2012 and the applicant’s detention, both pending trial and for the execution of his sentence, entailed real and effective restraint and had a deterrent effect on the applicant’s exercise of his right to freedom of assembly.", "As a result, the Court concludes that the applicant’s criminal convictions for membership of the PKK, dissemination of propaganda in support of the PKK and resistance to the police contained in the aforementioned judgments, as well as the imposition upon him of prison sentences and his detention between 21 July 2008 and 25 July 2010, constituted interference with his right to freedom of assembly as guaranteed by Article 11 of the Convention. (b) Whether the interference was prescribed by law 103. The Court reiterates that the expression “prescribed by law” in Article 11 of the Convention not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question. The law should be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct (see, among many others, Leyla Şahin, cited above, § 84; Kruslin v. France, 24 April 1990, § 27, Series A no. 176‑A; and Vyerentsov v. Ukraine, no.", "20372/11, § 52, 11 April 2013). Besides, the legal norms should be compatible with the rule of law (see, for example, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001‑VIII; and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 50, 8 October 2013). 104.", "Further, as regards the words “in accordance with the law” and “prescribed by law” which appear in Articles 8 to 11 of the Convention, the Court observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one; it has included both “written law”, encompassing enactments of lower ranking statutes (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 93, Series A no. 12) and regulatory measures taken by professional regulatory bodies under independent rule‑making powers delegated to them by Parliament (see Barthold v. Germany, judgment of 25 March 1985, § 46, Series A no. 90), and unwritten law. “Law” must be understood to include both statutory law and judge-made “law” (see, among many other authorities, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 47, Series A no.", "30; and Kruslin, cited above, § 29). In sum, the “law” is the provision in force as the competent courts have interpreted it (see Leyla Şahin, cited above, § 88). 105. In the present case, the Court observes that it is not in dispute between the parties that the interference in question had a legal basis: By the judgment of 11 November 2008, the applicant was convicted of the crimes proscribed by Article 314 § 2 of Law no. 5237, with reference to Articles 220 § 6 and 314 § 3 of the same Law; sections 23(b) and 33(c) of Law no.", "2911; and section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The applicant’s criminal convictions contained in the judgment of 20 December 2012 were based on section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code.", "106. As regards the applicant’s conviction under Article 314 § 2 of the Criminal Code with reference to Articles 220 § 6 and 314 § 3 of the same Code, the Court observes that the decision of the Plenary Court of Cassation (Criminal Divisions) of 4 March 2008 concerns the conviction of a certain F.Ö. under Article 314 § 2 of Law no. 5237 with reference to Articles 220 § 6 and 314 § 3 of the same Code, section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no.", "2911 on account of his participation in and conduct during three demonstrations (see paragraphs 56-59 above). The line of reasoning in this decision was also used by Diyarbakır Assize Court in its judgment of 11 November 2008 (see paragraph 19 above). The Court therefore considers that the question as to whether the interference based on Article 314 § 2 of the Criminal Code with the applicant’s right to freedom of assembly was prescribed by law must be examined on the basis not only of the wording of Articles 220 § 6, 314 § 2 and 314 § 3 of the Criminal Code, but also on that of the decision of 4 March 2008. There remains the question of the accessibility and foreseeability of the effects of the aforementioned provisions and the decision of 4 March 2008, as well as their compatibility with the rule of law. 107.", "In this connection, the Court considers that there is no doubt that the aforementioned provisions of Laws nos. 5237, 3713 and 2911 were accessible. As to the decision of 4 March 2008, the Court observes that while this decision was not published in the Official Gazette, it was available on the Internet. Thus, the Court does not find it necessary to pursue further the issue of the accessibility of domestic law (see Roman Zakharov v. Russia [GC], no. 47143/06, § 242, 4 December 2015).", "108. Regarding the question whether the domestic courts’ interpretation of the offence of membership of an illegal organisation could reasonably be foreseen by the applicant at the material time, the Court observes that Diyarbakır Assize Court considered that the applicant had taken part in the demonstration of 14 July 2008 and committed the offences proscribed under sections 23(b) and 33(c) of Law no. 2911 and section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on behalf of the PKK, given that the latter had made a general call for participation in this demonstration. The applicant was therefore convicted of membership of the PKK and sentenced to four years and two months’ imprisonment.", "This interpretation of Articles 220 § 6 and 314 §§ 2 and 3 of the Criminal Code is in accordance with the reasoning contained in the decision of the Plenary Court of Cassation of 4 March 2008. According to this line of interpretation, at the material time, if a demonstrator took part in a demonstration or a march for which the PKK had made a general call to participate, and committed one or more offences proscribed under the criminal codes during that event, he or she would be liable to be punished not only for the individual offences committed but also for membership of the PKK. In the light of its examination of these matters below, from the point of view of the “necessity” of the interference in a democratic society (see paragraphs 110‑118 below), the Court considers that it is not required to reach a final conclusion on the lawfulness issue in so far as it relates to the applicant’s conviction under Article 314 § 2 of the Criminal Code. For the same reason, the Court does not deem it necessary to examine the lawfulness of the applicant’s convictions under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and sections 23(b) and 33(c) of Law no.", "2911 by the judgment of 11 November 2008 and those under section 7(2) of Law no. 3713, sections 33(1), 32(1) and (2) of Law no. 2911 and Article 265 § 1 of the Criminal Code contained in the judgment of 20 December 2012. (c) Whether the interference pursued a legitimate aim 109. The Court is of the opinion that, in the present case, the national authorities may be considered to have pursued the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others.", "(d) Whether the interference was necessary in a democratic society 110. The Court reiterates that the right to freedom of assembly is a fundamental right in a democratic society and is one of the foundations of such a society. This right, of which the protection of personal opinion is one of the objectives, is subject to a number of exceptions which must be narrowly interpreted, and the necessity for any restrictions must be convincingly established. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the European Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Kudrevičius and Others v. Lithuania [GC], no.", "37553/05, § 142, 15 October 2015; Galstyan, cited above, § 114, and the cases cited therein). 111. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Navalnyy and Yashin v. Russia, no. 76204/11, § 53, 4 December 2014).", "In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 11 of the Convention (see, Kudrevičius and Others cited above, § 143; and also mutatis mutandis, Cumhuriyet Vakfı and Others, cited above, § 59). The Court further reiterates that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, mutatis mutandis, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 66, ECHR 1999‑IV; Kar and Others v. Turkey, no. 58756/00, § 48, 3 May 2007; and Murat Vural v. Turkey, no. 9540/07, § 64, 21 October 2014).", "112. In the present case, the Court observes at the outset that Diyarbakır Assize Court concluded that the applicant had participated in the march as a result of the calls of the PKK published on two websites when it convicted the applicant of membership of the PKK, without providing any reason for that conclusion. Even assuming that the applicant took part in the demonstration of 14 July 2008 after having received the PKK’s call, the Court observes that there is no justification in the first-instance court’s judgment for the conclusion that the applicant participated in the demonstration and acted pursuant to the PKK’s purposes or on behalf of that organisation upon its specific instructions to him. In this regard, the Court agrees with the Council of Europe’s Commissioner for Human Rights that the conviction of a person for membership of an illegal organisation for an act or statement which may be deemed to coincide with the aims or instructions of an illegal organisation is of concern (see paragraphs 66-69 above). 113.", "Likewise, the judgment of Diyarbakır Assize Court does not contain any information as to the reasons for which the applicant was found guilty of disseminating propaganda in support of a terrorist organisation. The Assize Court did not explain which of the acts of the applicant, a fifteen-year-old boy at the material time, constituted the offence proscribed by section 7(2) of Law no. 3713. Besides, the assize court noted in its judgment that in his statements before the national authorities the applicant had accepted that he had made propaganda in support of an illegal organisation (see paragraph 19 above), whereas there is nothing in the case file to substantiate this finding. Both before the Diyarbakır public prosecutor and the Fifth Division of Diyarbakır Assize Court the applicant maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened (see paragraphs 12, 13 and 16 above).", "On no occasion did he state that he had disseminated propaganda in support of the PKK. Besides, Diyarbakır Juvenile Court also failed to offer an explanation for the applicant’s conviction under section 7(2) of Law no. 3713 (see paragraph 37 above). 114. The Court reiterates in this connection that the obligation to provide reasons for a decision is an essential procedural safeguard under Article 6 § 1 of the Convention, as it demonstrates to the parties that their arguments have been heard, affords them the possibility of objecting to or appealing against the decision, and also serves to justify the reasons for a judicial decision to the public.", "This general rule, moreover, translates into specific obligations under Articles 10 and 11 of the Convention, by requiring domestic courts to provide “relevant” and “sufficient” reasons for an interference. This obligation enables individuals, amongst other things, to learn about and contest the reasons behind a court decision that limits their freedom of expression or freedom of assembly, and thus offers an important procedural safeguard against arbitrary interference with the rights protected under Articles 10 and 11 of the Convention. The Court is of the opinion that the failure of the domestic courts to provide relevant and sufficient reasons to justify the applicant’s conviction under Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713 also stripped the applicant of the procedural protection that he was entitled to enjoy by virtue of his right under Article 11 (see, mutatis mutandis, Saygılı and Seyman v. Turkey, no. 51041/99, § 24, 27 June 2006; Menteş v. Turkey (no.", "2), no. 33347/04, §§ 51-54, 25 January 2011; and Cumhuriyet Vakfı and Others, cited above, §§ 67-68, and the cases cited therein). 115. In assessing the proportionality of the interference with the applicant’s right to freedom of assembly, the Court has also had regard to the fact that the applicant was a minor at the relevant time. In this context, the Court notes Article 37 of the UN Convention on the Rights of the Child and General Comment No.", "10 (2007) of the United Nations Committee on the Rights of the Child, according to which the arrest, detention or imprisonment of a child can be used only as a measure of last resort and for the shortest appropriate period of time (see paragraphs 60 and 61 above). The Committee of Ministers and the Parliamentary Assembly of the Council of Europe also issued resolutions and recommendations in the same vein (see paragraphs 62-64 above). In the present case, there is nothing in the case file to show that the national courts sufficiently took the applicant’s age into consideration in ordering and continuing his detention on remand or in imposing a prison sentence. The Court notes the extreme severity of the penalties imposed on the applicant by Diyarbakır Assize Court pursuant to Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713, that is, a total of four years, eight months and twenty days of imprisonment, a sentence that the applicant partly served for a period of one year and eight months before he was released.", "What is more, the applicant was detained pending trial for almost four months and the Government did not argue that alternative methods had been considered first or that the applicant’s detention had been used only as a measure of last resort, in compliance with their obligations under both domestic law and a number of international conventions (see, mutatis mutandis, Güveç v. Turkey, no. 70337/01, § 108, ECHR 2009 (extracts)). 116. Finally, as to the applicant’s conviction under sections 23(b) and 33(c) of Law no. 2911 and subsequently under sections 32 (1) and (2), 33(1) of Law no.", "2911 and Article 265 § 1 of the Criminal Code for throwing stones at police officers, the Court first observes that both the applicant’s statements before the national authorities and the photographs in the case file reveal that he threw stones at the security forces and was thus involved in an act of violence. The Court considers that when individuals are involved in such acts the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of assembly (see, mutatis mutandis, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999‑IV). As a result, the imposition of a sanction for such a reprehensible act would be considered to be compatible with the guarantees of Article 11 of the Convention, as also submitted by the Government (see Osmani and Others, cited above; Galstyan, cited above, § 115; and Yılmaz Yıldız and Others, cited above, § 42).", "While it is true that with the judgment of 20 December 2012 the juvenile court decided to suspend the pronouncement of the criminal convictions arising from the applicant’s act of violence, the Court cannot overlook the harshness of the sentence imposed on the applicant by Diyarbakır Assize Court pursuant to sections 23(b) and 33(c) of Law no. 2911, that is to say, two years, nine months and ten days’ imprisonment, a sentence that the applicant partly served, or the lengthy period during which he was detained pending trial. In the Court’s view, its considerations regarding the disproportionate nature of the penalties imposed on the applicant by the assize court pursuant to Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713 equally apply under this head, in particular, in view of the applicant’s age. In this context, the Court cannot but conclude that the applicant’s punishment for throwing stones at the police officers during the demonstration was not proportionate to the legitimate aims pursued.", "117. In the light of the foregoing, the Court finds that the applicant’s criminal convictions for membership of the PKK, dissemination of propaganda in support of the PKK and resistance to the police as well as the imposition upon him of prison sentences and his detention between 21 July 2008 and 25 July 2010, were not “necessary in a democratic society”. There has accordingly been a violation of Article 11 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLES 5 AND 6 OF THE CONVENTION AND ARTICLE 2 OF PROTOCOL No.", "1 TO THE CONVENTION 118. The applicant complained of a violation of Article 5 of the Convention and Article 2 of Protocol No. 1 to the Convention. He further complained that he should have been tried by a juvenile court and not an assize court. 119.", "The Court observes that the applicant submitted these complaints in very general terms and failed to provide detailed explanations or supporting documents. He thereby failed to lay the basis of an arguable claim, which might have allowed its effective examination by the Court. 120. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 121. 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.” 122. The applicant did not submit a claim for just satisfaction within the specified time-limit. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Joins the issue of the applicant’s “victim status” to the merits of the applicant’s complaints under Article 11 of the Convention, and holds that the applicant has victim status; 2. Declares the complaints under Article 11 of the Convention admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 11 of the Convention. Done in English, and notified in writing on 19 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJulia LaffranqueRegistrarPresident [1].", "The word “fedai” (from Arabic) has two meanings in Turkish: 1. A person who gives his or her life for another person or for a cause; 2. A person who protects another person or a place. [2]. Botan is the name of a historical/geographical region situated in south-east Turkey.", "The PKK carried out its first acts in this region. [3]. İmralı is the island where Mr Abdullah Öcalan is serving a prison sentence. [4]. This document was not submitted to the Court by the parties.", "[5]. The name of the city of Diyarbakır in Kurdish." ]

[ "THIRD SECTION CASE OF SOYLU v. TURKEY (Application no. 43854/98) JUDGMENT STRASBOURG 15 February 2007 FINAL 15/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Soylu v. Turkey, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrB.M. Zupančič, President,MrJ.", "Hedigan,MrR. Türmen,MrC. Bîrsan,MrsA. Gyulumyan,MrE. Myjer,MrDavid Thór Björgvinsson, judges,and Mr S. Quesada, Section Registrar, Having deliberated in private on 25 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 43854/98) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Soylu (“the applicant”), on 22 July 1998. 2. The applicant, who had been granted legal aid, was represented by Mrs G. Altay and Mr S. Okçuoğlu, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicant alleged that State security forces had destroyed his home and possessions and had forced him to leave his place of residence with no possibility to return and that he had been denied an effective remedy in domestic law in violation of Articles 3, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No.", "11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.", "6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1). 7. By a decision of 4 October 2005, the Court declared the application partly admissible.", "8. The applicants and the Government each filed further written observations (Rule 59 § 1). The parties replied in writing to each other's observations. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9.", "The applicant was born in 1954 and lives in Istanbul. He was living in Nurettin village at the time of the alleged events giving rise to this application. The facts of the case are in dispute between the parties and may be summarised as follows. A. The applicant's version of the facts 10.", "Until April 1994 the applicant lived in Nurettin, a village of Malazgirt district in Mardin province, at that time a state-of-emergency region of Turkey. In 1994, terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers' Party of Kurdistan). The inhabitants of the applicant's village were under pressure by State security forces to agree to become village guards. 11.", "On 27 November 1993 soldiers, accompanied by persons wearing masks, raided Nurettin village. They assembled the inhabitants in the village square and threatened them with the burning of their houses if they did not agree to serve the State as village guards. They beat up fifteen young men. The soldiers then chose twenty houses and set them on fire after throwing a white powder on them. The houses of the applicant's brother and cousin completely burned down.", "12. Following this event, the villagers lived in fear for their security. Some of them left the village, and the rest, including the applicant, preferred to stay. The security forces visited the village two or three times a week in order to force the inhabitants to agree to become village guards. 13.", "In April 1994 the heads of approximately thirty families agreed under pressure to become village guards. However, these newly recruited village guards, protected by the State, also burned down eight or nine houses per day. The applicant's house was also burned down, which forced the applicant and his family to leave the village and settle in Malazgirt district. In the meantime, the village guards cultivated the applicant's lands, used the remainder of the materials left from his house and chopped and sold his poplar trees. Since the applicant could not overcome the economic difficulties to sustain his living he moved to Istanbul to find a job.", "14. On 17 April 1998, the applicant lodged a petition with the Malazgirt District Governor's office and asked for permission to return to his village. He explained that he was unable to sustain the living of his family in the city and that he wanted to cultivate his lands in the village. The District Governor transmitted the applicant's request to the District gendarmerie Command and also advised him to apply to the Konakkuran Gendarmerie Station. The applicant went to see the commander of the aforementioned station and told him that he had been advised to address him by the District Commander.", "The latter refused the applicant's request to re-settle in the village and ordered a gendarme to remove the applicant from the premises. B. The Government's version of the facts 15. The applicant left Nurettin village of his own free will and not under any pressure by the State security forces or village guards. 16.", "On 19 June 1997 the applicant petitioned the Malazgirt Chief Public Prosecutor's office complaining that the village guards from Nurettin village had been using his property without his consent. The applicant alleged that he had moved out of his village on account of terrorism in 1994. Subsequent to his departure the village guards had demolished his house and had removed its wooden parts and the stones. They had also cut down three thousand poplar trees in his field. The applicant therefore asked the Prosecutor to initiate criminal proceedings against the village guards and to ensure that the damage resulting from the alleged events be compensated.", "17. On 9 December 1997 the Malazgirt Public Prosecutor took statements from A.K., who transported the applicant's household property in his vehicle. He stated that in 1994 he transported the applicant's belongings from Nurettin village to Malazgirt district and that the applicant's house was intact. 18. On 10 May 1998 the applicant filed another petition with the Malazgirt Chief Public Prosecutor's office complaining that Z.P., who was one of the village guards in Nurettin village, had been illegally cultivating his father's land.", "19. On 20 August 1998 the Chief Public Prosecutor issued a decision of non-jurisdiction and referred the case-file to the Malazgirt District Administrative Council in accordance with the Law on Prosecution of Civil Servants. An investigation was carried out by an inspector, appointed by the Administrative Council, into the applicant's allegations. In this regard, six village guards, including Z.P., were questioned by the inspector. 20.", "On 30 June 1999, the Malazgirt Administrative Council dismissed a request for leave to initiate criminal proceedings against the six village guards from Nurettin. 21. By a decision of 8 November 1999 the Van Regional Administrative Court set aside the Administrative Council's decision and authorised the institution of criminal proceedings against the village guards for alleged destruction of the applicant's property, which offence was prescribed in Article 516 of the Criminal Code. 22. On 1 March 2000 the Malatya Assize Court heard evidence from the accused village guards.", "The latter denied the charges and claimed that the applicant had slandered them. They alleged that the applicant was a member of the mountain squad of the PKK and that therefore he was hostile to them because they were village guards. They also noted that the applicant did not own three thousand trees and six hundred dönüm[1] land in the village. The trees belonged to the applicant's brother who had cut and sold them and then moved to Istanbul. 23.", "On 24 March 2000 two gendarme officers took statements from three persons, namely R.G., C.Ç and İ.Ö., from Nurettin village. The villagers stated that they had seen the applicant when he moved from Nurettin to Malazgirt and that the village guards had not forced him to move out of the village. They also submitted that the applicant's house had not been burned down by the village guards but had been demolished as a result of bad weather conditions and lack of care. They also noted that the applicant possessed four or five hectares of land which could not contain thirty thousand poplar trees. 24.", "On the same day, the gendarme officers carried out an on-site inspection on the premises of the applicant's house in Nurettin village. They drew up a report in which they observed that there was no evidence that the house had been burned down. It appeared that the house had been demolished as a result of natural forces and lack of care. It was also noted that the applicant owned land measuring 10,200 square metres which could not contain the number of trees allegedly owned by the applicant. They further observed that the applicant had already cut six of his trees before moving to Malazgirt.", "The gendarme officers also drew up a sketch-map of the village. 25. On 16 May 2001 the Malazgirt Assize Court decided to defer the criminal proceedings against the village guards for five years in accordance with Article 1 § 4 of Law No. 4616 on Conditional Release, Deferral of Criminal Proceedings and Sentences. In the absence of any appeal, this judgment became final.", "However, this judgment did not grant amnesty to the accused because the criminal proceedings will be reopened if they commit a new offence within five years' time. 26. On 9 November 2005 gendarme officers took statements from the applicant and three inhabitants of Nurettin village in relation to the allegations made by the applicant in his application lodged with the European Court of Human Rights. 27. The applicant stated that in 1994 he had moved out of Nurettin village due to the intimidation by the village guards and that, fifteen days or a month after his departure, his house had been burned down by some of the villagers whose identity he did not know nor why they did so.", "In response to a question whether the State authorities forced him to agree to become a village guard, the applicant stated that no one had exerted pressure on him or his family. The applicant further stated that the allegation that the houses of those who did not agree to become village guards were burned down was untrue. When asked about the number of trees he owned, the applicant claimed that he owned - together with his brother and cousin - three thousand poplar trees, and not thirty thousand. The applicant also stated that he possessed land measuring 600 dönüm together with his brother and cousin and that he had not cultivated this land since 1994. In reply to a question whether he and his family had been affected by the terrorism in the region, the applicant stated that his son F.S.", "had been an active member of the PKK, that he had served a twelve years' prison sentence following his arrest and conviction and that therefore the PKK had not intimidated his family. Given that his wife's father had worked at the same time as a village guard, the State security forces had not intimidated his family either. The applicant finally noted that he had lived in Istanbul between 1994 and 2002 and that, since the latter date, he had been living in Taşlıçeşme hamlet, cultivating his lands. 28. The applicant's fellow villagers, Z.T., N.B.", "and H.Ç. stated that the authorities had not forced the villagers to agree to become village guards but, on the contrary, the villagers themselves had wished to become village guards since they would receive salaries from the State. However, some of the villagers, including the applicant and his family, had left the village on account of economic difficulties. In their opinion, the applicant had left the village because his son had joined the PKK and his brother had also moved out of the village earlier. The allegation that the applicant's house had been burned down by the village guards was untrue since the applicant's father-in-law was one of the village guards and he would not set his daughter's house on fire.", "The applicant's house had been demolished as a result of bad weather conditions and lack of care. The applicant could not own thirty thousand poplar trees given that the total number of trees in the village did not equal this number. The applicant possessed 60-70 dönüm of land together with his brothers. In 2002 he had settled in Taşlıçeşme hamlet and since then he had been cultivating his lands. Nobody had forced the applicant to leave the village.", "In the opinion of these witnesses, the applicant and a few other villagers had made such allegations in the hope that they would obtain some money. 29. Finally the Government pointed out that on 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. 30.", "In that connection, Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. 31. The number of persons applying to these commissions had already reached approximately 204,000. Many villagers had already been awarded compensation for the damage they had sustained.", "II. RELEVANT DOMESTIC LAW 32. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003), Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002) and Doğan and Others v. Turkey (nos.", "8803‑8811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...). THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS 33. In their supplementary observations dated 9 January 2006, the Government raised a preliminary objection concerning non-exhaustion of domestic remedies in the light of the 'Law on the Compensation of Losses Resulting from Terrorist Acts and the Measures Taken against Terrorism' adopted on 14 July 2004 (“Compensation Law”). This Law provided for a sufficient remedy capable of redressing the Convention grievances of the applicant who had suffered damages during the authorities' struggle against terrorism.", "The Government therefore asked the Court to reject this application for non-exhaustion of domestic remedies and to require the applicant to avail himself of the new remedy introduced in domestic law. 34. The applicant disputed the Government's objection and argued that he could not be required to exhaust a new remedy after the admissibility decision of the Court. 35. The Court recalls that in its admissibility decision of 4 October 2005 it had already dismissed the Government's objection on non‑exhaustion of domestic remedies given the lack of an effective remedy in respect of the applicant's Convention grievances.", "It notes that this objection was raised after the application was declared admissible. While the Court required a substantial number of applicants to avail themselves of the Compensation Law subsequent to its decision in the case of Aydın İçyer v. Turkey (no. 18888/02, 12 January 2006), it points out that none of those cases had been declared admissible following dismissal of the Government's objection on non-exhaustion. It is true that the question of admissibility can be revisited at any stage of the proceedings in accordance with Article 35 §§ 1 and 4 in fine of the Convention (see Azinas v. Cyprus [GC], no. 56679/00, § 42, ECHR 2004‑III).", "However, given the time elapsed since the introduction of this application, respect for human rights as defined in the Convention and its Protocols requires the Court to give a final ruling in the circumstances of the present case. The Government's objection cannot, therefore, be taken into account at this stage of the proceedings. II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 36.", "The applicant alleged that his forced eviction from Nurettin village and destruction of his house and possessions by the State security forces as well as his inability to return to his village had given rise to breaches of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, which reads in so far as relevant as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1. Everyone has the right to respect for his private and family life [and] his home... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 37. The applicant submitted that his forcible eviction from his family home and deliberate destruction of his property by the State security forces constituted a violation of his right to peaceful enjoyment of his possessions and his right to respect for his family life. He contended that the circumstances surrounding the destruction of his property and his eviction from his village also amounted to inhuman and degrading treatment. Furthermore, the applicant disputed the veracity of his statements dated 9 November 2005, the content of which he learned from his lawyers, and claimed that he had never told the gendarme officers that he had not been intimidated or that the houses had not been burned by the security forces.", "He also had not told the gendarme officers that he had owned 3,000 trees. He had owned, together with his brother, 30,000 poplar trees, as he had already claimed in his application form. Finally, the applicant pointed out that the statements taken from Z.T., N.B. and H.Ç. should be treated with caution given that these witnesses were village guards and thus could not be impartial and that the first two witnesses had been tried on charges of murder.", "38. The Government denied the factual basis of the applicant's complaints and submitted that they were unsubstantiated. Relying on the findings of the investigating authorities and the testimonies given by a number of witnesses, the Government maintained that the applicant had left his village of his own will and that the security forces had not forced him to leave. Nor had the security forces burned the applicant's house or any other houses in Nurettin village. 39.", "The Court is confronted with a dispute over the exact cause of the events giving rise to the present application. Accordingly, it must primarily have regard to the general situation prevailing in the region at the time of the alleged events. In this connection it observes that at the relevant time violent confrontations had taken place between the security forces and members of the PKK in the state-of-emergency region of Turkey. This two‑fold violence resulting from the acts of the two parties to the conflict forced many people to flee their homes. Moreover, the national authorities had evicted the inhabitants from a number of settlements to ensure the safety of the population in the region (Doğan and Others v. Turkey, nos.", "8803-8811/02, 8813/02 and 8815-8819/02, § 142, ECHR 2004‑...(extracts)). Yet the Court has also found in numerous similar cases that security forces deliberately destroyed the homes and property of certain applicants, depriving them of their livelihood and forcing them to leave their villages in the state-of-emergency region of Turkey (see, among many others, Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV; Selçuk and Asker v. Turkey, judgment of 24 April 1998, Reports 1998‑II; Menteş and Others v. Turkey, judgment of 28 November 1997, Reports 1997‑VIII; Bilgin v. Turkey, no. 23819/94, 16 November 2000, and Dulaş v. Turkey, no. 25801/94, 30 January 2001). 40.", "This being so, it should be pointed out that both the European Commission of Human Rights and the Court have previously embarked on fact finding missions in similar cases in Turkey where the State security forces were allegedly the perpetrators of the unlawful destruction of property (see, among many others, the above cited judgments of Akdivar and Others and Yöyler; and İpek v. Turkey, no. 25760/94, ECHR 2004‑...). In those cases, the main reason which prompted the Convention institutions to have recourse to such an exercise was their inability to establish the facts in the absence of an effective domestic investigation. 41. It is a matter of regret for the Court that it is unable to attempt to establish the facts of the present case by embarking on a fact finding exercise of its own by summoning witnesses.", "However, it considers that such an exercise would not yield sufficient evidence capable of establishing the true circumstances of the case, given that the passage of a substantial period of time, almost eleven years in the instant case, makes it more difficult to find witnesses to give testimony and takes a toll on the capacity of a witness to recall events in detail and with accuracy (see İpek, cited above, § 116). Accordingly, the Court must reach its decision on the basis of the available evidence submitted by the parties (see Pardo v. France, judgment of 20 September 1993, Series A no. 261-B, p. 31, § 28, cited in Çaçan v. Turkey, no. 33646/96, § 61, 26 October 2004). 42.", "As noted earlier and having regard to its previous findings in a number of cases concerning the evacuation and destruction of villages in south-east Turkey at the relevant time, the applicant's allegations that he had been forcibly evicted from his village and that his house had been burned by State security forces cannot be discarded as being prima facie untenable (see among other authorities, the judgments of Akdivar and Others, Selçuk and Asker, Menteş and Others, Bilgin, Dulaş, Yöyler and İpek, all cited above). However, for the Court, the required evidentiary standard of proof for the purposes of the Convention is that of “beyond reasonable doubt”, and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences, or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 161). 43. In view of the above considerations, the Court observes that, subsequent to the receipt of the applicant's criminal complaint, the local authorities carried out an investigation into his allegations.", "In this context, statements were taken from a number of persons. A.K., who carried out the removal of the applicant's household property from Nurettin to Malazgirt, stated that the applicant's house was intact on the day of the removal (see paragraph 17 above). Furthermore, in their oral evidence to the Malazgirt Assize Court, six village guards, who were allegedly involved in the events in question, denied the applicant's allegations. The applicant's fellow villagers R.G., C.Ç. and İ.Ö.", "also claimed that the applicant's allegations were untrue and that nobody had forced the applicant to leave the village (see paragraph 28 above). Nor had anybody set the applicant's house on fire (Ibid.) Moreover, the on-site investigation carried out on the ruins of the applicant's house showed that there was no trace indicating that the house had been exposed to fire, but that the house seemed to have been demolished as a result of natural forces and lack of care (see paragraph 24 above). 44. This being so, the Court notes that the applicant waited until 19 June 1997 - more than three years - to file a complaint with the public prosecutor's office about the alleged events.", "He has offered no explanation for his remaining totally inactive after he had left the village. He has not explained the reasons for his failure to intervene in the proceedings which were commenced by the Malazgirt Chief Public Prosecutor's office or his failure to pursue his case subsequent to lodging a complaint with the prosecuting authorities. 45. Furthermore, the applicant did not submit any eye-witness statement in relation to the burning down of his house and possessions by the village guards. Nor did he give any particulars as to the identity of the persons involved in the alleged events.", "Moreover, the applicant has also failed to provide any evidence, such as written statements from other villagers, which would rebut the testimonies of the Government's witnesses and the findings of the national authorities. The Court notes in this connection that the witness testimonies provided by the Government were consistent and their accounts are backed up by the on-site investigation report. 46. In view of the unexplained delay on the part of the applicant to lodge his complaint with the authorities and his complete failure to rebut the testimonies of the witnesses, the Court does not find it established to the required standard of proof that the applicant's house was burned down or that he was forcibly evicted from his village by the State security forces. 47.", "As regards the applicant's alleged prevention from returning to his village, the Court observes that the applicant did not provide any information or evidence to substantiate his allegation concerning the authorities' denial of access to his village. In particular, he did not explain when and by whom he was prevented from having access to Nurettin or the use of his property. The Court considers, therefore, that the applicant has also failed to corroborate his allegation that he was forced to leave and denied access to his village by State security forces. 48. Against this background, the Court concludes that there has been no violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No.", "1. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 49. The applicant complained that he had been denied an effective remedy with which to challenge the destruction of his house and his forced eviction as well as his being prevented from returning to his village by the security forces. He relied on Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 50.", "The applicant contended that he had had no effective remedy in respect of his Convention grievances as demonstrated by the failure of the authorities to carry out an adequate investigation into his complaints. 51. The Government contended that there had been no shortcomings in the investigation and that the authorities had conducted an effective inquiry into the applicant's allegations. 52. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.", "The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Dulaş and Yöyler, both cited above, §§ 65 and 87 respectively). 53. The Court recalls that on the basis of the evidence collected in the present case, it has not found it proved to the required standard of proof that the applicant was forcibly evicted from his village following the destruction of his house or that he was denied access to his village by the State security forces or village guards as alleged (see paragraphs 46 and 47 above).", "That said, the Court reiterates that, notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another provision is not a prerequisite for the application of the Article (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). However, having regard to its above findings on the applicant's substantive complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, the Court cannot conclude that the applicant has laid the basis of a prima facie case of misconduct on the part of the security forces. It refers in this connection to the applicant's failure to rebut the testimonies of the villagers or the conclusions reached in the investigation conducted by the domestic authorities into his complaints (see in this respect Matyar and Çaçan, both cited above, §§ 154 and 80 respectively).", "54. In the light of the foregoing, the Court considers that the above mentioned situation cannot be regarded as a breach of the applicant's right to an effective remedy. 55. Accordingly, there has been no violation of Article 13 of the Convention. IV.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, IN CONJUNCTION WITH ARTICLES 3, 8 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 56. The applicant maintained that, because of his Kurdish origin, he had been subjected to discrimination in breach of Article 14 of the Convention, in conjunction with Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1. Article 14 provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 57.", "The applicant argued that the destruction of his house and possessions was the result of an official policy, which constituted discrimination due to his Kurdish origin. 58. The Government rejected the applicant's allegations. 59. The Court has examined the applicant's allegation in the light of the evidence submitted to it, but considers it unsubstantiated.", "There has therefore been no violation of Article 14 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objection; 2. Holds that there has been no violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1; 3.", "Holds that there has been no violation of Article 13 of the Convention; 4. Holds that there has been no violation of Article 14 of the Convention, in conjunction with Articles 3, 8 and 13 of the Convention, and Article 1 of Protocol No. 1. Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaBoštjan M. ZupančičRegistrarPresident [1] One dönüm = about 920 square metres." ]

[ "FIRST SECTION CASE OF SIBGATULLIN v. RUSSIA (Application no. 32165/02) JUDGMENT STRASBOURG 23 April 2009 FINAL 14/09/2009 This judgment may be subject to editorial revision In the case of Sibgatullin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Anatoly Kovler,Elisabeth Steiner,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 2 April 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 32165/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr German Nailyevich Sibgatullin (“the applicant”), on 10 December 2002. 2.", "The applicant, who had been granted legal aid, was represented by the Centre for the International Protection. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that his right to a fair trial had been violated in that the appeal hearing of his criminal case had been held in his absence. 4.", "On 8 July 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5. On 13 September 2007 the President of the First Section invited the Government to submit further written observations on the admissibility and merits of the application under Rule 54 § 2 (c) of the Rules of the Court. 6.", "The Government objected to the joint examination of the admissibility and merits of the application. The Court examined and dismissed their objection. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1966 and lives in Nizhniy Tagil, Sverdlovsk region.", "He is currently serving a prison sentence in Nizhnyy Tagil. 8. In September 2001 the applicant and a certain B. were arrested on suspicion of three murders and were placed in detention. The applicant alleged that he was ill-treated while in detention. However, he did not lodge any complaints in that respect with the competent domestic authorities.", "9. On 22 February 2002 the Sverdlovsk Regional Court (“the trial court”) heard the case in the presence of the applicant, his counsel Ch. and his co-accused B. The applicant submitted that B. had tried to strangle the first victim with a cord, but had not managed to do so and asked him for help. So, he had tightened the cord.", "Afterwards he strangled the second victim. He further maintained that the third victim was killed by his co-accused. Co-accused B. submitted that the applicant had killed the third victim with a knife. 10. The trial court considered that B.’s testimony regarding the third murder was coherent and consistent with other evidence submitted at trial and therefore deserved more credit.", "It found the applicant guilty of three murders and theft and sentenced him to twenty years’ imprisonment. It found B. guilty of complicity in committing the first and the second murders as well as of theft and sentenced her to fifteen years’ imprisonment. The judgment stated that the applicant and his co-accused could appeal to the Supreme Court of the Russian Federation within seven days of the date on which they received a copy of the judgment. 11. In their appeal against the judgment of 22 February 2002 the applicant and his counsel complained, in particular, that the trial court’s conclusions regarding the applicant’s guilt in the first murder were not supported by the evidence submitted at trial.", "The first victim had been strangled by B. and when the applicant approached her, she was already dead. The applicant’s conviction for the third murder had been based solely on B.’s testimony which was supported by nothing else but the court’s suppositions. The applicant and his counsel requested that the judgment be quashed and the case be remitted for a fresh trial. When lodging the appeal the applicant did not expressly state that he wished to take part in the appeal hearing. The applicant’s co-accused did not appeal against her conviction.", "12. On 15 August 2002 the Supreme Court of the Russian Federation (“the Supreme Court”) examined the applicant’s appeal in the presence of the prosecutor and dismissed it. Neither the applicant nor his counsel were present at that hearing. 13. On 26 October 2005 the Deputy Prosecutor General of the Russian Federation lodged an application for supervisory review of the appeal decision of 15 August 2002 with the Presidium of the Supreme Court, on the ground that the applicant and his lawyer had not been properly notified of the appeal hearing of 15 August 2002 and therefore, could not attend it.", "He requested that the above decision be quashed and the case be remitted for a fresh appeal examination. 14. On 5 April 2006 the Presidium of the Supreme Court quashed the decision of 15 August 2002 and remitted the case for a fresh examination of the appeal. It appears that neither the applicant nor his representative were present at that hearing. 15.", "On 23 May 2006 the head of the detention facility in which the applicant was held received a telegram which read as follows: “Inform Sibgatullin that his case will be heard by the Supreme Court of the Russian Federation at 10 am on 29 June 2006”. On the same date the applicant read that telegram. A similar notification was also sent to the applicant’s legal counsel Ch. 16. On 29 June 2006 the Supreme Court held an appeal hearing in the absence of the applicant and his counsel.", "It heard the prosecutor who requested that the applicant’s conviction on three counts of murder be upheld and that the sentence imposed for theft be lifted as the prescription period had expired. 17. Having studied the materials of the case, the appeal court found, in particular, that the trial court had rightly concluded on the basis of evidence submitted at trial that when the applicant had been tightening the cord, the first victim was still alive and that therefore, he had killed her. It further confirmed the trial court’s conclusion that the applicant had also killed the third victim. The Supreme Court concluded that the trial court had correctly characterised the applicant’s actions as murders and had imposed an appropriate sentence.", "It upheld the applicant’s conviction for the murders, lifted his sentence in respect of theft and sentenced the applicant to nineteen years and six months’ imprisonment. 18. It does not appear from the decision of 29 June 2006 that the appeal court verified whether the applicant had been duly informed of the hearing and whether he had expressed a wish to take part in it. 19. On 4 July 2006 the applicant, who allegedly was not aware of the appeal hearing of 29 June 2006, but at some point learned that the appeal decision of 15 August 2002 had been quashed on 5 April 2006, sent additional grounds of appeal to the appeal court.", "On the same date he also lodged a special request for leave to appear at the appeal hearing and requested the appeal court to provide him with legal counsel. II. RELEVANT DOMESTIC LAW AND PRACTICE Code of Criminal Procedure of the Russian Federation of 18 December 2001, in force since 1 July 2002 (“the CCrP”) 20. Appeal courts shall verify the legality, validity and fairness of the judgment of the trial court (Article 360). 21.", "If a convicted person wishes to take part in the appeal hearing, he shall indicate this in his statement of appeal (Article 375 § 2). 22. Parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. Whether a convicted person held in custody shall be summoned shall be decided by the court. A convicted person held in custody who expressed a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link.", "The court shall make a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall always be entitled to take part in the hearing. If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case (Article 376 §§ 2-4). 23. At the hearing the appeal court shall hear the statement of the party who lodged the appeal and the objections of the opposing party.", "The appeal court shall be empowered, at a party’s request, to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party (Article 377). 24. The appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment (Article 378). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 25.", "The applicant complained under Article 6 of the Convention that criminal proceedings against him had been unfair because appeal hearings on 15 August 2002 and 29 June 2006 had been held in his absence. The relevant parts of Article 6 of the Convention provide as follows: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing ...” A. Submissions by the parties 26. The Government acknowledged that neither the applicant nor his representative had been notified of the appeal hearing of 15 August 2002 in breach of Article 376 of the CCrP.", "In that connection, supervisory review proceedings were initiated on the application of the Deputy Prosecutor General. On 5 April 2006 the Presidium of the Supreme Court of the Russian Federation quashed the appeal decision of 15 August 2002 and remitted the case for a fresh appeal hearing. A fresh appeal examination took place on 29 June 2006. The applicant and his counsel were duly informed of that hearing by telegrams sent on 4 May 2006. The applicant received that notification on 23 May 2006, however he submitted a request for participation in the appeal hearing only on 4 July 2006.", "He did not ask to be brought to the appeal hearing in his grounds of appeal. Therefore, taking into account that the applicant and his counsel were duly informed of the hearing, that the applicant failed to make a special request for participation in the hearing in due time, that his counsel failed to appear without any valid reasons and did not ask to postpone the hearing, the appeal court examined the case in their absence. The Government concluded that the applicant had been able to take part in the appeal hearing of 29 June 2006, but had failed to use that opportunity. Consequently, the Russian authorities had complied with the requirements of Article 6 §§ 1 and 3 (c) of the Convention. 27.", "The applicant submitted that neither he nor his counsel had been informed of the supervisory review proceeding and of their outcome. The telegram of 4 May 2006 which he received on 23 May 2006 stated that a hearing of his case would take place on 29 June 2006, but it did not say what kind of hearing it would be. Furthermore, the Government did not submit any proof that his counsel had received that notice. Therefore, it cannot be said that his counsel was duly informed of the appeal hearing. Furthermore, four years had elapsed since the date of the first appeal hearing and the contract concluded between the applicant and his counsel had expired.", "The authorities were under an obligation to verify whether the applicant was still represented, and provide him with another representative if necessary. The applicant concluded that the authorities’ failure to inform him about the developments in his case and failure to notify his counsel of the appeal hearing of 29 June 2006 violated his right to a fair trial and had not provided appropriate redress for their failure to notify him and his counsel of the appeal hearing of 15 August 2002. B. The Court’s assessment 1. Admissibility 28.", "According to the Government, the supervisory review and the new appeal proceedings had remedied the shortcomings of the initial appeal proceedings. Therefore, they may be understood to claim that the applicant had lost his victim status in respect of the appeal hearing of 15 August 2002. 29. In this respect, the Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for, a breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no.", "36813/97, §§ 178-93, ECHR 2006‑...). 30. As regards the first condition, namely the acknowledgment of a violation of the Convention, the Court considers that the Presidium’s decision to quash the appeal decision of 15 August 2002 does amount to an acknowledgment that there had been a breach of Article 6 of the Convention. 31. With regard to the second condition, namely, appropriate and sufficient redress, the Court must ascertain whether the measures taken by the authorities, in the particular circumstances of the instant case, afforded the applicant appropriate and sufficient redress in order to determine whether he could still claim to be a victim.", "As the Government’s objection under this head is closely linked to the merits of the applicant’s complaints, the Court decides to join them. 32. The Court considers that the applicant’s complaint about holding the appeal hearings of 15 August 2002 and 29 June 2006 in his absence is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits (a) General principles 33. The Court reiterates that the object and purpose of Article 6 taken as a whole implies that a person “charged with a criminal offence” is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 guarantee to “everyone charged with a criminal offence” the right “to defend himself in person”, “to examine or have examined witnesses” and “to have the free assistance of an interpreter if he cannot understand or speak the language used in court”, and it is difficult to see how he could exercise these rights without being present (see Colozza v. Italy, 12 February 1985, § 27, Series A no. 89).", "Based on that interpretation of Article 6 the Court has held that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005). 34. The personal attendance of the defendant does not necessarily take on the same crucial significance for an appeal hearing as it does for the trial (see Kamasinski v. Austria, 19 December 1989, § 106, Series A no. 168).", "The manner in which Article 6 is applied to proceedings before courts of appeal depends on the special features of the proceedings involved – account must be taken of the entirety of the proceedings in the domestic legal order and of the role of appeal court therein (see Ekbatani v. Sweden, 26 May 1988, § 27, Series A no. 134). 35. Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity to be heard in person by the appeal or cassation court, provided that he had been heard by a first-instance court (see, among other authorities, Monnell and Morris v. the United Kingdom, 2 March 1987, § 58, Series A no. 115, as regards the issue of leave to appeal, and Sutter v. Switzerland, 22 February 1984, § 30, Series A no.", "74, as regards the court of cassation). 36. In appeal proceedings reviewing the case both as to facts and as to law, Article 6 does not always require a right to a public hearing, still less a right to appear in person (see Fejde v. Sweden, 29 October 1991, § 33, Series A no. 212-C). In order to decide this question, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant’s interests were actually presented and protected before the appeal court, particularly in the light of the nature of the issues to be decided by it and of their importance to the appellant (see, among many other authorities, Kremzow v. Austria, 21 September 1993, § 59, Series A no.", "268-B; Belziuk v. Poland, 25 March 1998, § 37, Reports of Judgments and Decisions 1998-II; and Hermi v. Italy [GC], no. 18114/02, § 62, ECHR 2006‑...). For instance, where an appeal court has to make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused for the purpose of proving that he did not commit the act allegedly constituting a criminal offence (see Dondarini v. San Marino, no. 50545/99, § 27, 6 July 2004). 37.", "The Court further reiterates that the principle of equality of arms is another feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. The right to an adversarial trial means, in a criminal case, that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations made and the evidence adduced by the other party (see Brandstetter v. Austria, 28 August 1991, §§ 66-67, Series A no. 211). (b) Application of the above principles to the instant case 38. The Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1.", "Therefore, it will examine the applicant’s complaint under these provisions taken together (see Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I). 39. The Court observes that in Russian criminal procedure, appeal courts have jurisdiction to deal with questions of law and fact pertaining both to criminal liability and to sentencing. They are empowered to examine the evidence and additional materials submitted by the parties directly.", "As a result of the examination, the appeal courts may dismiss the appeal and uphold the judgment, quash the judgment and terminate the criminal proceedings, quash the judgment and remit the case for a fresh trial, or amend the judgment (see “Relevant domestic law and practice” above, paragraphs 20 and 23-24). 40. In their grounds of appeal the applicant and his counsel contested the applicant’s conviction on factual and legal grounds. They submitted, in particular, that the applicant’s guilt in the first and the third murders had not been supported by evidence submitted at trial and that the trial court attached undue weight to the applicant’s co-accused’s statements. They asked the appeal court to quash the conviction for those two murders and remit the case for a fresh trial.", "The Prosecutor asked to uphold the applicant’s conviction for the three murders. Consequentely, the issues to be determined by the appeal court in deciding the applicant’s liability were both factual and legal. The appeal court was called on to make a full assessment of the applicant’s guilt or innocence regarding the charges of the first and third murders. 41. The Court further observes that the proceedings in question were of utmost importance for the applicant, who had been sentenced to twenty years’ imprisonment at first instance and who was not represented at the appeal hearing of 29 June 2006.", "It also does not lose sight of the fact that the prosecutor was present at the appeal hearing and made submissions. 42. Having regard to the criminal proceedings against the applicant in their entirety and to the above elements, the Court considers that the appeal court could not properly determine the issues before it without a direct assessment of the evidence given by the applicant in person. Neither could it ensure equality of arms between the parties without giving the applicant the opportunity to reply to the observations made by the prosecutor at the hearing. It follows that in the circumstances of the present case, it was essential to the fairness of the proceedings that the applicant be present at the appeal hearing.", "43. The Government have acknowledged and the Court agrees that the appeal proceedings of 15 August 2002 fell short of the guarantees of fair trial because neither the applicant nor his legal counsel were duly notified of the appeal hearing. However, the Government contended that the appeal decision of 15 August 2002 had been quashed by way of supervisory review and that in new appeal proceedings the applicant had been given an opportunity to apply for participation in the hearing, which he did not use. 44. In order to assess whether the supervisory review indeed remedied the defects of the original proceedings, as alleged by the Government, the Court has to verify whether the guarantees of fair trial were afforded in the ensuing appeal proceedings and whether the applicant lost the opportunity to be present at the hearing by failing to submit a special request.", "45. In that respect the Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to “defend himself in person or through legal assistance ...” it does not specify the manner in which this right should be exercised. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their legal systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirement of a fair trial (see Quaranta v. Switzerland, 24 May 1991, § 30, Series A no. 205). The Court considers that the requirement to lodge a prior request for participation in the appeal hearing would not in itself contradict the requirements of Article 6, if the procedure is clearly set out in the domestic law.", "46. The Court further reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner; it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006‑...), and it must be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A).", "Furthermore, in view of the prominent place held in a democratic society by the right to a fair trial Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to know of the date of the hearing and the steps to be taken in order to take part where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01, § 72, ECHR 2004-IV, and Hermi, cited above, § 76). 47. The Court observes that no explicit waiver was made in the present case. The question is whether there was a tacit one.", "In order to reply to that question, the Court will have to establish in the first place, whether, as the Government submitted, the applicant and his representative were duly informed of the appeal hearing of 29 June 2006. 48. The Court observes that on 23 May 2006 the applicant was informed that “case will be heard by the Supreme Court of the Russian Federation at 10 am on 29 June 2006”. However, according to the applicant, by that date he was not aware that his case had been sent to a fresh appeal hearing as a result of the supervisory review and therefore, he could not know what kind of hearing would be held by the Supreme Court. The Court notes that the Government have not provided any information to prove that the applicant and/or his counsel were duly informed of the supervisory review proceedings or of their outcome.", "The Court further notes that on 4 November 2005 it forwarded to the applicant a copy of the Government’s observations in which they submitted that on 26 October 2005 the Deputy Prosecutor had applied for a supervisory review of the appeal decision of 15 August 2002. On 23 May 2006 the Court forwarded to the applicant the Government’s letter from which it followed that on 5 April 2006 the Presidium of the Supreme Court had quashed the appeal decision of 15 August 2002 and had remitted the case for a fresh appeal examination. It follows that, at least until the date on which the applicant received the Court’s letter of 23 May 2006 he was not aware of the results of the supervisory review proceedings. It means that on 23 May 2006, the date on which the applicant read the telegram informing him that his case would be heard by the Supreme Court, he could not have known what hearing was to be held by the Supreme Court, a supervisory review hearing or a fresh appeal hearing. In those circumstances, the Court considers that the applicant was not duly notified of the appeal hearing of 29 June 2006.", "The Court also notes that the Government have not submitted any document which demonstrates that the applicant’s counsel received notification. 49. Furthermore, it follows from the appeal decision of 29 June 2006 that the appeal court did not verify whether the applicant and his representative had been duly notified of the hearing. Neither did that decision state that the applicant had failed to submit a request for participation in the hearing and had waived his right, and that his failure to appear would not preclude examination of the case. In such circumstances, the Court considers that it cannot be said that in the present case the applicant had waived his right to take part in the hearing in an unequivocal manner.", "50. Having regard to its findings in paragraphs 42, 48 and 49 above, the Court considers that the appeal hearing of 29 June 2006 did not comply with the requirements of fairness. It follows that the measures taken by the authorities, failed to provide appropriate redress to the applicant in respect of the violation of his right to take part in the appeal hearing of 15 August 2002. He may therefore still claim to be a victim within the meaning of Article 34 of the Convention. The Court therefore, rejects the Government’s objection under this head and finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of holding the appeal hearings of 15 August 2002 and 29 June 2006 in the applicant’s absence.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 51. The applicant complained under Article 3 that he had been ill-treated while in pre-trial detention. The Court notes that the applicant did not lodge any complaints in that respect with the competent state authorities. It follows that this complaint must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 53. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be submitted in writing within the time-limit fixed for the submission of the applicant’s observations on the merits, “failing which the Chamber may reject the claim in whole or in part”. 54.", "In the instant case, on 4 November 2005 the applicant was invited to submit his claims for just satisfaction. He failed to submit any such claims within the required time-limit. Therefore, the Court makes no award under Article 41 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s objection concerning the victim status of the applicant and rejects it; 2.", "Declares the complaint concerning holding the appeal hearings of 15 August 2002 and 29 June 2006 in the applicant’s absence admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of holding the appeal hearings of 15 August 2002 and 29 June 2006 in the applicant’s absence; 4. Decides to make no award under Article 41. Done in English, and notified in writing on 23 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint concurring opinion of Judges Rozakis, Spielmann and Malinverni is annexed to this judgment.", "C.L.R.S.N. JOINT CONCURRING OPINION OF JUDGES ROZAKIS, SPIELMANN AND MALINVERNI 1. As in the case of Sakhnovskiy v. Russia, (no. 21272/03, 5 February 2009), we voted in favour of finding a violation of Article 6 §§ 1 and 3 (c) of the Convention. 2.", "In the present case the majority follows the approach adopted in Sakhnovsksiy, finding that the second appeal hearing did not provide appropriate redress for the shortcomings of the first appeal hearing and holding that there was a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) on account of the fact that both appeal hearings were held in the applicant’s absence. 3. In our view however the applicant was no longer a victim of the shortcomings of the first appeal hearing, because by quashing the appeal decision and sending the case for a fresh appeal examination the authorities had acknowledged and provided appropriate redress for the shortcomings of the first appeal hearing. 4. Our reasoning therefore differs from the majority’s approach and we would like to refer in this respect to our joint concurring opinion in Sakhnovskiy and in particular to paragraph 5 of that opinion." ]

[ "THIRD SECTION CASE OF GRIGORYEV AND IGAMBERDIYEVA v. RUSSIA (Application no. 10970/12) JUDGMENT STRASBOURG 12 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Grigoryev and Igamberdiyeva v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helen Keller, President,Pere Pastor Vilanova,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 22 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10970/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Yakov Aleksandrovich Grigoryev and Ms Kamola Dilmuratovna Igamberdiyeva (“the applicants”), on 18 January 2012.", "2. The applicants were represented by Ms K. Mehtiyeva, a lawyer practising in Paris. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 30 June 2017 notice of the complaints under Articles 5 § 1, 10 and 11 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "4. The Government did not object to the examination of the applications by a Committee. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant (Mr Grigoryev) was born in 1984 and lives in Svetlogorsk.", "The second applicant (Ms Igamberdiyeva) was born in 1989 and lives in Kaliningrad. 6. On an unknown date the second applicant notified the Kaliningrad authorities of her intention to hold a group public event on 12 December 2010 in Pobeda Square. The authorities replied that preparations for the New Year celebrations were planned on that day; they did not suggest an alternative venue. The second applicant did not challenge the authority’s reply before the domestic courts.", "Both applicants decided to stage solo demonstrations near the monument to “Mother Russia” instead; this did not require prior notification. 7. According to the applicants, on 12 December 2010 the first applicant staged a solo demonstration holding a banner saying “Freedom for Khodorkovskiy and Lebedev! We plead for a lawful judgment”. After he had completed his demonstration and placed himself at a distance of some twenty metres, the second applicant held her own solo demonstration.", "She was wearing a T-shirt saying “Freedom for Khodorkovskiy and Lebedev!” She completed her demonstration in five minutes. Then the first applicant returned to the venue with his banner and remained there for about two minutes, until police officers took him to a police van. He was then taken to a police station and held there for over three hours. 8. According to the Government, at 4 p.m. on 12 December 2010 the applicants participated in a group public event in the form of a “picket” (пикетирование) using visual props, namely a banner and a T-shirt.", "At 4 p.m. the first applicant was taken to the Leninskiy district police station. Between 5.15 p.m. and 6.30 p.m. a duty officer drew up an administrative offence record in respect of the first applicant. He was accused of taking part in a group public event held without authorisation, an offence under Article 20.2 § 1 of the Code of Administrative Offences (hereinafter “the CAO”). On 14 December 2012 the second applicant was called to the Leninskiy district police station, where she was accused of a similar offence, although it was classified under Article 20.2 § 2 of the CAO. 9.", "The cases against the applicants were submitted to a justice of the peace of court circuit no. 2 of the Leninskiy District of Kaliningrad. The court ordered the police to submit a video recording showing the events of 12 December 2010. By two judgments of 3 March 2011 the justice of the peace found that the applicants had held solo demonstrations and had not breached the Public Events Act (hereinafter “the PEA”), including its prior notification requirement applicable to group events. The court relied, inter alia, on the video recording submitted by the police.", "The administrative cases against the applicants were discontinued for lack of the elements of the offences under Article 20.2 §§ 1 and 2 of the CAO. 10. The police lodged an appeal. On 16 May 2011 the Leninskiy District Court of Kaliningrad upheld the judgments. The appellate court also considered that it had not been confirmed that the applicants had in fact taken part in a group “picket”.", "11. The applicants sought compensation of 100,000 roubles (RUB)[1] each for unlawful deprivation of liberty and violation of their right to freedom of expression by way of solo demonstration. By a judgment of 15 July 2011 the Tsentralniy District Court of Kaliningrad found that taking the first applicant to the police station had been unlawful, and awarded him RUB 10,000 (equivalent to 250 euros (EUR) at the time) in respect of non-pecuniary damage. On 25 July 2011 the same court also granted the claims by the second applicant, having found that preventing her from staging a solo demonstration and consequently prosecuting her had been unlawful. The court also awarded the second applicant RUB 10,000 for non-pecuniary damage.", "12. The first applicant appealed against the judgment of 15 July 2011, complaining, inter alia, about the amount of the compensation and the first‑instance court’s failure to make specific findings in relation to the violation of his freedom of expression on account of the police intervention in his solo demonstration. On 7 September 2011 the Kaliningrad Regional Court upheld the judgment. Relying on Article 27.1 § 2 of the CAO and Article 1070 § 2 of the Civil Code, it ruled that it followed from the discontinuation of the CAO case that placing the first applicant under administrative escort and arrest had been unlawful under Russian law as well as “unjustified” (необоснованные). The appellate court also considered that the interference with freedom of expression had been acknowledged by the declaration that taking the first applicant to the police station had been unlawful.", "13. The second applicant also appealed. On 21 September 2011 the Kaliningrad Regional Court upheld the judgment of 25 July 2011. II. RELEVANT DOMESTIC LAW AND PRACTICE 14.", "For a summary of domestic law and practice concerning regulations relating to the conduct of public events, liability for breaches committed during such events, and administrative escort and arrest, see Lashmankin and Others, nos. 57818/09 and 14 others, §§ 216-312, 7 February 2017, and Novikova and Others v. Russia, nos. 25501/07 and 4 others, §§ 47-85, 26 April 2016. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 5 § 1, 10 and 11 OF THE CONVENTION 15.", "Referring to Articles 5 § 1, 10 and 11 of the Convention, the first applicant complained about being taken to the police station and held there, and the second applicant complained about being prosecuted for an administrative offence. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers that this complaint falls to be examined under Article 10 of the Convention, and Article 5 § 1 as regards the first applicant. The relevant parts of Articles 5 and 10 read as follows: Article 5 “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; ...” Article 10 “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 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 ...” 16. The Government argued that the domestic authorities had acknowledged the unlawfulness of the actions concerning prevention of both applicants from holding their solo demonstrations and their administrative prosecution, and the first applicant’s being taken to the police station and held there for some time.", "Both applicants had been awarded reasonable compensation and thus their rights had been fully restored at the national level. 17. The applicants submitted that they had staged solo demonstrations which did not require prior notification. The police had not explained in what manner the applicants’ actions had constituted a breach of the Russian legislation or public order. Neither had they justified the first applicant’s being taken to the police station and held there for three hours.", "The applicants further claimed that they had remained victims of a violation of their rights guaranteed by the Convention. A. Admissibility 18. First of all, the Court notes that the first applicant’s complaint under Article 5 § 1 of the Convention was lodged on 18 January 2012, while his deprivation of liberty had ceased on 12 December 2010. However, following the discontinuation of the related administrative-offence proceedings the applicant brought civil proceedings for compensation that ended on 7 September 2011 and were partly successful (see paragraph 11 above). The Court considers that those proceedings should be taken into account for the purposes of the six-month rule under Article 35 § 1 of the Convention.", "It follows that the first applicant has complied with this rule. This has not been contested, and the Court accepts that the same considerations are valid for the complaint under Article 10 of the Convention. 19. The Court also reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim”, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention right or freedom (see Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999‑VI).", "Redress so afforded must be appropriate and sufficient, failing which a person can continue to claim to be a victim of the violation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006‑V). 20. The Court notes that both applicants claimed and received compensation at the domestic level before lodging an application before the Court.", "It considers that the issue of victim status is closely linked to the substance of the first applicant’s complaints and must be joined to the merits. 21. As regards the second applicant, it is common ground between the parties that she was not hindered and was able to complete her demonstration on 12 December 2010; the demonstration, by her own choice, lasted five minutes. It does not appear therefore that there was an intervention by the police in the exercise of her right to freedom of expression. As regards the subsequent prosecution of the second applicant, she was accused of an offence of an administrative nature (rather than of a criminal offence stricto sensu); that prosecution resulted in the discontinuation of the proceedings.", "The trial, which lasted from March until May 2011, was thus not overly long. The second applicant was not deprived of her liberty after the demonstration or during the trial; neither did she face other restrictions on her rights (compare Döner and Others v. Turkey, no. 29994/02, § 88, 7 March 2017). The domestic courts acknowledged a violation of the second applicant’s right to freedom of expression on account of her unlawful prosecution for an offence of an administrative nature, and awarded her compensation for non-pecuniary damage of EUR 250. Even assuming that there was an “interference” and that the second applicant can still claim to be the victim of a breach of Article 10 of the Convention on account of the mere fact of being prosecuted, which lasted some time, albeit without incurring any other adverse consequences in connection with the prosecution (compare Dilipak v. Turkey, no.", "29680/05, §§ 44-51, 15 September 2015, and Çölgeçen and Others v. Turkey, nos. 50124/07 and 7 others, §§ 39-40, 12 December 2017), the Court considers that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 22. The Court notes that the first applicant’s complaints under Article 5 § 1 and 10 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 23. The Court has previously found that the arrest and detention of protesters may constitute an interference with the right to freedom of expression (see Dilek Aslan v. Turkey, no. 34364/08, § 67, 20 October 2015, and the cases cited therein).", "In the present case the first applicant staged a solo demonstration holding a banner demanding a fair trial for two well‑known figures. The first applicant’s demonstration was not interrupted. He thereby exercised, without hindrance, his right to freedom to “impart information and ideas” and “to hold opinions”. However, his later being taken to the police station and prosecuted for an administrative offence were both related to his having expressed opinions and disseminated information, and therefore constituted “interference” with his rights guaranteed under Article 10 of the Convention. The fact that the prosecution for an administrative offence resulted in the discontinuation of the administrative proceedings against the first applicant does not alter that finding.", "24. The Court reiterates that the Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see Correia de Matos v. Portugal [GC], no. 56402/12, § 116, 4 April 2018). The Court has no doubt that the domestic courts in the present case attempted, in good faith and to the best of their ability, to assess the level of suffering, distress, anxiety or other harmful effects sustained by the applicant. It reiterates that such an assessment should be carried out in a manner consistent with the domestic legal requirements and take into account the standard of living in the country concerned, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Cocchiarella v. Italy [GC], no.", "64886/01, § 80, ECHR 2006‑V, and Vasilevskiy and Bogdanov v. Russia, nos. 52241/14 and 74222/14, § 23, 10 July 2018). 25. However, even assuming that the domestic court’s finding of unlawfulness regarding the first applicant’s being taken to the police station from the site of his solo demonstration constituted, in substance, an acknowledgment of the violation of his freedom of expression, the Court is not satisfied that the amount of EUR 250 constituted adequate and sufficient redress in respect of the interference, which was both unlawful and disproportionate as indicated in paragraphs 26 and 27 below (see Novikova and Others, cited above, § 218). The award was by no means comparable to what could be awarded under Article 41 of the Convention either under Article 5 § 1 or Article 10 of the Convention (see Scordino v. Italy (no.", "1), §§ 181 and 202; Novikova and Others, §§ 222-25 and 231, both cited above; Tsvetkova and Others v. Russia, nos. 54381/08 and five others, § 203, 10 April 2018; Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, § 98, 26 June 2018; see also, mutatis mutandis, Vasilevskiy and Bogdanov, cited above, § 23). The Court further observes that although the domestic courts accepted that there had been no need to take the first applicant to the police station, they did not acknowledge the violation relating to the exercise of his freedom of expression (compare Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no.", "38433/09, § 88, ECHR 2012). Thus, the first applicant remained a victim of the alleged violations under Articles 5 § 1 and 10 of the Convention when he lodged the application before the Court. The Government’s objection as to the first applicant’s victim status should be therefore dismissed. 26. For its part, as to the merits of the complaint under Article 10 of the Convention, the Court does not discern any compelling reasons that justified taking the first applicant to the police station.", "The Court therefore concludes that he was a victim of, at the very least, disproportionate interference with his freedom of expression on account of his being taken to the police station. 27. As to Article 5 § 1 of the Convention, the domestic courts acknowledged that the first applicant’s being taken to the police station had been in breach of Russian law. The Court sees no reason to disagree. 28.", "There have accordingly been violations of Articles 5 § 1 and 10 of the Convention in respect of the first applicant. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. 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 30.", "Mr Grigoryev claimed 10,000 euros (EUR) in respect of non‑pecuniary damage. 31. The Government contested the claims for non-pecuniary damage as excessive and unreasonable. 32. Taking into account the nature and scope of the violations of Articles 5 § 1 and 10 of the Convention and the domestic award, the Court awards Mr Grigoryev EUR 1,700 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses 33. Mr Grigoryev did not submit any claims under this head. Accordingly, there is no call to award him any sum on that account. C. Default interest 34.", "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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins the issue of the first applicant’s “victim status” to the merits of his complaints under Articles 5 § 1 and 10 of the Convention, and holds that the first applicant has victim status in relation to those complaints; 2. Declares the complaints under Articles 5 § 1 and 10 of the Convention lodged by the first applicant admissible and the remainder of the application inadmissible; 3. Holds that there have been violations of Articles 5 § 1 and 10 of the Convention in respect of the first applicant; 4.", "Holds (a) that the respondent State is to pay the first applicant, within three months, EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident [1]. Approximately 2,500 euros at the material time" ]

[ "SECOND SECTION CASE OF ALDEMİR v. TURKEY (Application no. 37215/04) JUDGMENT STRASBOURG 22 September 2009 FINAL 22/12/2009 This judgment may be subject to editorial revision. In the case of Aldemir v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Sally Dollé, Section Registrar, Having deliberated in private on 1 September 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 37215/04) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Aldemir (“the applicant”), on 17 May 2004.", "2. The applicant was represented by Mr A. Ertunç, a lawyer practising in İstanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 10 September 2008 the President of the Second Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 4. The applicant was born in 1978 and lives in İstanbul. 5. On 27 July 2003 the applicant was stabbed by F.Ç.", "On the same day the police took statements from F.Ç. and the applicant separately. They were both wounded and accused each other of starting the fight. On 29 July 2003 the Bakırköy Forensic Institute delivered its reports on the applicant and F.Ç., which stated that they were unfit for work for ten and seven days respectively. On 31 July 2003 the Bakırköy Public Prosecutor filed an indictment against the applicant and F.Ç.", "for assault occasioning bodily harm. The indictment was not served on the applicant or F.Ç. On 21 November 2003 the Bakırköy Magistrate’s Court issued a penal order without holding a hearing and found the applicant and F.Ç. guilty as charged. The court fined each of them 462,377,000 Turkish liras[1].", "In doing so, it relied on the “simplified procedure” stipulated in Article 386 of the Code of Criminal Procedure for relatively minor offences. On 14 January 2004 the applicant challenged this decision before the Bakırköy Criminal Court. On 30 January 2004 the Bakırköy Criminal Court dismissed the objection without holding a hearing. THE LAW 6. The applicant complained that he had been unable to defend himself in person or through legal assistance, as there had been no public hearing in his case.", "He further stated that the indictment of the public prosecutor had not been served on him. In this respect the applicant relied on Article 6 §§ 1, 2 and 3 (a), (b) and (d) of the Convention. The Government contested these arguments. 7. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 8. The Court considers that, in the instant case, it is more appropriate to deal with the applicant’s complaints under Article 6 § 1 globally due to the overlapping nature of the issues and since the sub-paragraphs of Article 6 § 3 may be regarded as specific aspects of the general fairness guarantee of the first paragraph (see Piroğlu and Karakaya v. Turkey, nos. 36370/02 and 37581/02, § 38, 18 March 2008).", "9. The Court reiterates that it is a fundamental principle enshrined in Article 6 § 1 that court hearings should be held in public (see, among other authorities, Stefanelli v. San Marino, no.35396/97, § 19, ECHR 2000-II). The Court recalls that it has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present applications (see, inter alia, Karahanoğlu v. Turkey, no. 74341/01, §§ 35‑39, 3 October 2006; Evrenos Önen v. Turkey, no. 29782/02, §§ 29-33, 15 February 2007; Nurhan Yılmaz v. Turkey (no.", "2), no. 16741/04, §§ 22-24, 8 April 2008; Günseli Kaya v. Turkey (no. 2), no. 40886/02, §§ 29- 32, 23 June 2009). It finds no reason to depart from such a conclusion in the present case.", "Consequently, there has been a breach of Article 6 § 1 of the Convention due to the lack of a hearing in the applicant’s case, as a result of which he was not able to participate effectively in the criminal proceedings lodged against him. 10. As regards the question of just satisfaction under Article 41 of the Convention, the applicant claimed that he could not work for a period of more than a month because of his wounds and, even then, his salary had been reduced as he could not produce as much work as before. He further asserted that he now had a criminal record which would make it difficult for him to find new jobs in the future. He thus claimed 20,000 euros (EUR) and EUR 35,000 in respect of pecuniary damage and non-pecuniary damage respectively.", "With regard to the costs and expenses, the applicant claimed a total of EUR 5,000 for his medical expenses, the fine he had paid, lawyer’s fees and translation costs. In this respect he submitted the lawyer’s contract and a number of receipts. 11. The Government contested these claims. 12.", "As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article 6 of the Convention would have been. Accordingly, it makes no award under this head (see Karahanoğlu v. Turkey, cited above). Moreover, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. Finally, deciding on an equitable basis and considering its case-law, the Court awards the applicant EUR 1,000 for costs and expenses. 13.", "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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention; 3. Holds that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage suffered by the applicant; 4.", "Holds (a) that the respondent State is to pay the applicant, in respect of costs and expenses, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Sally DolléFrançoise TulkensRegistrarPresident [1]. Approximately 264 euros at the time." ]

[ "SECOND SECTION CASE OF MÜRVET FİDAN AND OTHERS v. TURKEY (Application no. 48983/99) JUDGMENT STRASBOURG 26 September 2006 FINAL 26/12/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mürvet Fidan and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrR.", "Türmen,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström,MrD. Popović, judges, and Mrs S. Naismith, Deputy Section Registrar, Having deliberated in private on 5 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 48983/99) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Turkish nationals, Mürvet Fidan, Murat Fidan, Hikmet Fidan, Zehra Fidan and Elif Özbilge (“the applicants”). 2. The applicants were represented by Mr Refik Timuçin Bektaş, a lawyer practising in Ankara. 3.", "On 26 October 2004 the Court declared the application partly inadmissible and decided to communicate the following complaints to the respondent Government: - the national authorities' delay in paying additional compensation for expropriation and damage sustained by the applicants as a result of the low interest rate applied to State debts, despite the high inflation in Turkey; - the length of the proceedings and the exceptional situation which was favourable to the State as a result of the difference between the rate of interest payable on unpaid debts owed to the State and the rate of interest on debts owed by the State at the material time; and - the fact that the latter were not subject to enforcement procedures, unlike the former. 4. In a letter of 28 October 2004, the Court informed the parties that, in accordance with Article 29 §§ 1 and 3 of the Convention, it would decide on both the admissibility and merits of the application. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "All of the applicants live in Baskil, Turkey. 6. On 19 July 1993 each of them brought separate actions before the Baskil Civil Court against the National Water Board. They alleged that their plots of land were illegally seized by the administration for a dam construction without any payment, and requested compensation. 7.", "On 18 November 1993 the court ruled that the cases should be characterised as compensation claims arising from de facto expropriations rather than claims for illegal seizures. The court established that a committee of experts had assessed the value of the expropriated land in advance and that the authorities had paid the resulting amounts to the owners registered in the local land registry. The court ordered the administration to pay the applicants an amount of increased compensation, plus interest at the statutory rate, starting from 1986 when the land was submerged in the waters of the dam. 8. On 6 October 1994 the Court of Cassation quashed these judgments, holding that the cases could not be characterised as compensation claims arising from expropriation.", "Upon the applicants' request, however, the Court of Cassation reversed its decision and held, on 10 March 1995, that the cases could in fact be characterised as compensation claims arising from expropriation. It proceeded to quash the judgments of the first-instance court only in respect of the date from which the statutory rate of interest began to run. 9. By decisions of 21 December 1995 and 25 January 1986, the Baskil Civil Court ordered the administration to pay the applicants a certain amount of compensation, plus interest running from 1986, despite the earlier rulings of the Court of Cassation regarding the starting date from which interest was to be calculated. 10.", "On 20 November 1996 the Plenary Court of Cassation quashed the judgments of the Baskil Civil Court. The same court rejected the applicants' rectification request on 2 May 1997. 11. On 9 October 1997 the Baskil Civil Court ordered the administration to pay the applicants 315,650,000, 297,439,800, 265,571,250, 404,680,000 and 708,190,000 Turkish liras (TRL) respectively, plus interest at the statutory rate running from 19 August 1993, the date on which the land was transferred to the National Water Board. 12.", "On 17 March 1998 the Court of Cassation upheld these judgments. On 2 April 1998 the Court of Cassation's rulings were served on the applicants. 13. On 9 December 1998 the administration paid TRL 934,027,000 to Ms Mürvet Fidan, 884,579,000 TRL to Mr Murat Fidan, TRL 790,746,000 to Mr Hikmet Fidan, TRL 1,190,092,000 to Ms Zehra Fidan and TRL 2,041,230,000 to Ms Elif Özbilge. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 14. The relevant domestic law and practice are set out in the Akkuş v. Turkey judgment of 9 July 1997 (Reports of Judgments and Decisions 1997‑IV). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 15.", "The applicants complained that the additional compensation for expropriation, which they had obtained from the authorities only by December 1998, had fallen in value, since the statutory rate of interest had not kept pace with the high rate of inflation in Turkey. They relied on Article 1 of Protocol No. 1, which reads insofar as relevant as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” A. Admissibility 16. The Government did not submit any preliminary objections concerning this complaint.", "17. The Court notes that, in the light of the principles it has established in its case-law (see, among other authorities, Akkuş v. Turkey, cited above) and of all the evidence before it, this complaint requires examination on the merits and there are no grounds for declaring it inadmissible. B. Merits 18. The Court has found a violation of Article 1 of Protocol No.", "1 in a number of cases that raise similar issues to those arising here (see Akkuş, cited above, p. 2682, §§ 50-51). 19. Having examined the facts and arguments presented by the Government, the Court considers that there is nothing to warrant a departure from its findings in the previous cases. It finds that the delay in paying the additional compensation awarded by the domestic courts was attributable to the expropriating authority and caused the owners a loss additional to that of the expropriated land. As a result of that delay and the length of the proceedings as a whole, the Court finds that the applicants have had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and the protection of the right to the peaceful enjoyment of possessions.", "20. Consequently, there has been a violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21.", "The applicants also complained under Article 6 § 1 of the Convention of the unreasonable length of the court proceedings. A. Admissibility 22. The Government argued that the applicants had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, since they had not, at any stage of the proceedings, claimed that the length of the proceedings had exceeded the “reasonable time” limit. 23. The Court notes that, even if the applicants had complained about the length of proceedings before the domestic courts, they would not have been afforded adequate redress for that grievance.", "Thus, it dismisses the Government's preliminary objection. 24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. B.", "Merits 25. In the light of its findings with regard to Article 1 of Protocol No. 1 (paragraph 20 above), the Court does not consider that a separate examination of the merits of the case under Article 6 § 1 is necessary. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 26.", "Lastly, the applicants complained under Article 14, in conjunction with Article 1 of Protocol No. 1, of the difference between the rate of interest payable on debts owed to the State and the rate of interest payable on debts owed by the State at the material time, and of the fact the latter were not subject to enforcement procedures. Admissibility 27. The Court recalls that Article 14 is designed to safeguard individuals, or groups of individuals, placed in comparable situations, from all discrimination in the enjoyment of the rights and freedoms set forth in the Convention and the Protocols (see National Union of Belgian Police v. Belgium, judgment of 27 October 1975, Series A no. 19, p. 15, § 44).", "In other words, this Article affords protection against discrimination “among persons in relevantly similar situations” (see Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no. 192, p. 15, § 60). 28. The applicants' complaint relates to a difference in treatment of the State and individuals in the context of their respective debts.", "However, the State and individuals cannot be considered to be “similarly situated persons”. Moreover, the applicants did not claim that the State discriminated against them vis-à-vis other individuals. The complaint therefore falls outside the scope of Article 14 and must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 29.", "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 30. The applicants sought compensation for pecuniary damage only. However they left the amount of compensation to the Court's discretion. 31.", "The Government made no observations on this point. 32. Using the same method of calculation as in the Akkuş judgment (cited above, pp. 2683-84, §§ 55-56) and having regard to the relevant economic data, the Court awards the applicants a total of 1,762 euros (EUR) for pecuniary damage, as follows: - EUR 255 to Ms Mürvet Fidan; - EUR 209 to Mr Murat Fidan; - EUR 196 to Mr Hikmet Fidan; - EUR 349 to Ms Zehra Fidan; and - EUR 753 to Ms Elif Özbilge. B.", "Costs and expenses 33. The applicants also requested the costs and expenses incurred before the Court and left the amount at the Court's discretion. 34. The Government made no observations on this point. 35.", "Making its own estimate based on the information available, the Court considers it reasonable to award the applicants, jointly, the sum of EUR 500 under this head. C. Default interest 36. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention; 3. Holds that it is unnecessary to examine the merits of the complaint under Article 6 § 1 of the Convention separately; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following sums, to be converted into Turkish liras at the rate applicable at the date of settlement: (i) in respect of pecuniary damage - EUR 255 (two hundred and fifty-five euros) to Ms Mürvet Fidan; - EUR 209 (two hundred and nine euros) to Mr Murat Fidan; - EUR 196 (one hundred and ninety-six euros) to Mr Hikmet Fidan; - EUR 349 (three hundred and forty-nine euros) to Ms Zehra Fidan; - EUR 753 (seven hundred and fifty-three euros) to Ms Elif Özbilge; (ii) EUR 500 (five hundred euros) to the applicants, jointly, in respect of costs and expenses; (iii) plus any taxes that may be chargeable at the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.", "Done in English, and notified in writing on 26 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. NaismithJ.-P. Costa Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF RYABININA AND OTHERS v. RUSSIA (Applications nos. 50271/06 and 8 others – see appended list) JUDGMENT STRASBOURG 2 July 2019 This judgment is final but it may be subject to editorial revision. In the case of Ryabinina and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Helen Keller,María Elósegui, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 11 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in nine applications (nos. 50271/06, 4718/07, 24121/07, 7624/08, 53088/08, 64311/10, 6737/11, 74971/11 and 64746/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Russian nationals, whose names and dates of birth are listed in the Appendix, on various dates listed in the Appendix.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. Some of the applicants were represented by lawyers, whose names are listed in the Appendix. 3. The applicants complained, in particular, of a breach of their rights to freedom of expression and freedom of assembly.", "Some of the applicants also alleged the lack of an effective remedy in that respect or unlawful arrest. 4. Between 11 March 2010 and 8 July 2014 notice of the above complaints were given to the Government and the remainder of the applications nos. 6737/11, 74971/11 and 64746/13 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The list of applicants and the relevant details of the applications are set out in the appended table. 6. The applicants complained of various restrictions imposed by the authorities on the location, time or manner of conduct of public events. Some applicants also alleged the lack of an effective remedy in that respect or unlawful arrest.", "THE LAW I. JOINDER OF THE APPLICATIONS 7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. LOCUS STANDI 8. The Court notes that one of the applicants, Ms Yelena Zusyevna Ryabinina (application no.", "50271/06), died and that her daughter, Ms Olga Mikhaylovna Ryabinina, expressed a wish to continue with the application. 9. The Government submitted that the applicant’s daughter could not claim to be a victim of a violation of her mother’s rights under Articles 10 and 11 of the Convention, as those rights were non-transferable. 10. The Court reiterates that where an applicant dies during the examination of a case his or her heirs may in principle pursue the application on his or her behalf (see Jėčius v. Lithuania, no.", "34578/97, § 41, ECHR 2000‑IX). In a number of cases in which an applicant died in the course of the proceedings the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see, for instance, Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999‑VI; Hanbayat v. Turkey, no. 18378/02, §§ 19-21, 17 July 2007; and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 97-101, ECHR 2013).", "Furthermore, the Court recognised the right of the relatives of the deceased applicant to pursue the application concerning the exercise of the right to freedom of assembly (see Szerdahelyi v. Hungary, no. 30385/07, §§ 19-22, 17 January 2012, and Nosov and Others v. Russia, nos. 9117/04 and 10441/04, §§ 28‑30, 20 February 2014). 11. In the present case the successor submitted documents confirming that she was the applicant’s close relative and heir.", "In these circumstances, the Court considers that the applicant’s daughter has a legitimate interest in pursuing the application in place of her late relative. III. ALLEGED VIOLATIONS OF ARTICLES 10 AND 11 OF THE CONVENTION 12. The applicants complained of the restrictions imposed by the authorities on the location, time or manner of conduct of public events. They relied, expressly or in substance, on Article 11 of the Convention.", "Some applicants also invoked Article 10, however, this complaint falls to be examined under Article 11 (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, §§ 363-365, 7 February 2017). Article 11 reads as follows: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.", "No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility 13. In their additional observations in application no. 24121/07, the Government argued for the first time that the applicants had not exhausted the domestic remedies as they had not lodged a civil claim for compensation after their judicial review complaint against the refusal to approve the public event had been allowed and the refusal had been declared unlawful. 14.", "The Court notes that the Government did not raise that objection in their initial observations on the admissibility and merits, and the question of the applicants’ failure to lodge a civil claim for compensation was raised only in their additional observations and submissions on just satisfaction. The Government did not indicate any impediment by which they had been prevented from referring, in their initial observations on the admissibility and merits of the case, to a failure by the applicants to lodge a civil claim. It follows that the Government are estopped from relying on a failure to exhaust domestic remedies (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 51-54, 15 December 2016). 15.", "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 16.", "The applicants maintained their claims. 17. The Government contested their arguments. 18. The Court refers to the principles established in its case‑law regarding freedom of assembly (see Kudrevičius and Others v. Lithuania [GC], no.", "37553/05, ECHR 2015, with further references). 19. In the leading case of Lashmankin and Others (cited above, §§ 402‑78), the Court found a violation in respect of issues similar to those in the present case. 20. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case.", "Having regard to its case-law on the subject, the Court considers that in the instant case the interference with the applicants’ freedom of assembly was based on legal provisions which did not meet the Convention’s “quality of law” requirements, and was moreover not “necessary in a democratic society”. 21. There has therefore been a violation of Article 11 of the Convention in respect of each applicant. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 22.", "The applicants in applications nos. 24121/07, 6737/11, 74971/11 and 64746/13 complained under Article 13 of the Convention in conjunction with Article 11 of the Convention that they did not have an effective remedy against the alleged violations of their freedom of assembly. Article 13 of the Convention reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 23. The Government contested that argument. A. Admissibility 24.", "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 25.", "In the recent case of Lashmankin and Others (cited above, §§ 342‑61) the Court found that the applicants had not had at their disposal an effective remedy to challenge refusals to approve the location or time of a public event or the manner in which it was to be conducted. 26. The Court does not see any reason to reach a different conclusion in the present case. It therefore finds that the applicants did not have at their disposal an effective remedy in respect of their complaint under Article 11 of the Convention. 27.", "There has accordingly been a violation of Article 13 in applications nos. 24121/07, 6737/11, 74971/11 and 64746/13. V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 28. The applicants in applications nos. 6737/11 and 74971/11 complained that their arrest had been arbitrary and unlawful.", "They relied on Article 5 § 1, which 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: (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. Admissibility 29. The Government submitted that Mr Kostyrin (application no. 74971/11) had lost victim status as the domestic courts had acknowledged a violation of his rights and had awarded him compensation.", "They argued that the amount of compensation was comparable to the amounts awarded by the Court in cases concerning short lengths of detention (they referred to Sergey Solovyev v. Russia, no. 22152/05, 25 September 2012, and Tarakanov v. Russia, no. 20403/05, 28 November 2013). 30. The Court observes that Mr Kostyrin was detained from 9 p.m. on 18 March 2010 to 5.30 p.m. on 19 March 2010, that is for a little less than nineteen hours.", "The domestic courts then acknowledged that his detention had been unlawful and awarded him 20,000 Russian roubles (about 500 euros (EUR)). Having regard to the short duration of Mr Kostyrin’s detention, the Court considers that the amount awarded to him was not manifestly unreasonable in comparison to what the Court would have awarded in a similar case (see Fortalnov and Others v. Russia, nos. 7077/06 and 12 others, 26 June 2018). In the circumstances of the case, the Court considers that such a redress was sufficient and adequate, having the effect of rendering the applicant “no longer a victim” of the alleged violation. 31.", "It follows that Mr Kostyrin’s complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 32. As regards Mr Khayrullin, the Court notes that his 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 33. The Government submitted that Mr Khayrullin had been escorted to the police station under Article 27.2 of the Code of Administrative Offence because he had not had any identity documents on him and it had been therefore impossible to draw up the administrative offence report at the place where the offence had been discovered. 34. The applicant maintained his claim.", "35. It has not been disputed that Mr Khayrullin was deprived of his liberty within the meaning of Article 5 § 1 of the Convention from 10.30 to 5.30 p.m. on 20 March 2010. The administrative offence report stated that he had been escorted to the police station for the purpose of drawing up an administrative offence report. Article 27.2 of the Code of Administrative Offences provides that a suspected offender could be escorted to a police station for the purpose of drawing up an administrative offence report only if such a report could not be drawn up at the place where the offence had been discovered. The Court is not convinced by the Government’s assertion that in the applicant’s case it was impossible because he did not have identity documents because that assertion is refuted by the documents in the case file.", "Indeed, none of the official documents mentions the alleged lack of identity documents or explain why it was not possible to draw the administrative report on the spot. The police report states that the applicant was brought to the police station after his identity documents had been checked; the administrative offence report indicates the applicant’s passport details; and the release certificate mentions that the applicant’s driving license was given back to him upon release. No obstacles to drawing up the report on the spot may be therefore discerned from the documents in the case file. 36. It follows that the facts of the present case are similar to those in Navalnyy and Yashin v. Russia (no.", "76204/11, §§ 68 and 93, 4 December 2014) and Lashmankin and Others (cited above, §§ 486-92), where a violation of Article 5 § 1 was found. The Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 37. The Court finds that the escorting of the applicant to the police station did not comply with Russian law and was therefore not “lawful” within the meaning of Article 5 § 1. 38.", "There has therefore been a violation of Article 5 § 1 of the Convention in application no. 6737/11. VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 39. Lastly, the Court has examined the other complaints submitted by the applicants in applications nos.", "24121/07 and 53088/08 having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 41. The applicants claimed various amounts in respect of non-pecuniary damage. Some applicants also claimed pecuniary damage in the amount of the fines they had paid. 42. The Government submitted that the claims for non-pecuniary damage were excessive.", "As regards the claim for pecuniary damage, they submitted that the fines had been lawfully imposed on the applicants for administrative offences. 43. The Court considers that there is a direct causal link between the violation of Article 11 found and the fines some of the applicants had paid following their conviction for the administrative offence (see, for similar reasoning, Lashmankin and Others, cited above, § 515). Regard being had to the documents in its possession, the Court considers it reasonable to award the sums indicated in the appended table in respect of pecuniary damage, plus any tax that may be chargeable. 44.", "Further, having regard to the nature of the violations found in respect of each applicant, to the principle ne ultra petitum, and to its case‑law (see Lashmankin and Others, cited above, § 516), the Court awards the amounts indicated in the appended table in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 45. Some applicants also claimed costs and expenses incurred before the domestic courts and/or those incurred before the Court, in particular legal and translation fees and postal expenses. 46.", "The Government contested the claims. 47. Regard being had to the documents in its possession and to its case‑law, the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to them on those amounts. The awards in applications nos. 4718/07, 24121/07 and 6737/11 are to be paid into the representatives’ bank accounts, as requested by the applicants.", "C. Default interest 48. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints about the alleged breach of the applicants’ rights to freedom of assembly, the lack of an effective remedy in that respect and the alleged unlawfulness of Mr Khayrullin’s taking to the police station admissible and the remainder of the applications inadmissible; 3.", "Holds that there has been a violation of Article 11 of the Convention in all applications; 4. Holds that there has been a violation of Article 13 of the Convention in applications nos. 24121/07, 6737/11, 74971/11 and 64746/13; 5. Holds that has been a violation of Article 5 § 1 of the Convention in application no. 6737/11; 6.", "Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that the award in respect of Ms Yelena Zusyevna Ryabinina should be paid to her heir Ms Olga Mikhaylovna Ryabinina. The awards in respect of costs and expenses in application nos. 4718/07, 24121/07 and 6737/11 are to be paid into the representatives’ bank accounts as indicated by the applicants; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 2 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş Aracı Paulo Pinto de AlbuquerqueDeputy RegistrarPresident No. Application no. Lodged on Applicant Date of birth Place of residence Represented by Location Date of the public event planned Restrictions applied Other measures applied Final domestic decision (type of procedure) Date Name of the court Amount awarded for pecuniary damage per applicant (in euros)[1] Amount awarded for non‑pecuniary damage per applicant (in euros)[2] Amount awarded for costs and expenses per application (in euros)[3] 1. 50271/06 20/11/2006 Yelena Zusyevna RYABININA 14/01/1955 Moscow Lawyers from the Memorial Human Rights Centre In front of the Federal Security Service building in Moscow 01/02/2006 Proposal to change the location Dispersal, arrest and conviction of an administrative offence (sentenced to a fine of RUB 500) Notification procedure: 30/05/2006 Moscow City Court; Administrative Offence Proceedings: 06/06/2006 Meshchanskiy District Court of Moscow EUR 15, to be paid to the applicant’s heir, Ms Olga Mikhaylovna Ryabinina EUR 5,000, to be paid to the applicant’s heir, Ms Olga Mikhaylovna Ryabinina EUR 5,800, to be paid to the applicant’s heir, Ms Olga Mikhaylovna Ryabinina 2. 4718/07 28/11/2006 Lev Aleksandrovich PONOMAREV 02/09/1941 Moscow Mikhail Aleksandrovich KRIGER 23/02/1960 Moscow Mikhail Yakovlevich SHNEYDER 19/09/1948 Moscow Ms O. Mikhaylova, Mr V. Prokhorov, and Mr V. Shukhardin In front of the Federal Security Service building in Moscow 01/02/2006 Proposal to change the location Dispersal and arrest; administrative offence proceedings were brought but later discontinued Notification procedure: 30/05/2006 Moscow City Court; Administrative Offence Proceedings: 19/05/2006 Meshchanskiy District Court of Moscow EUR 7,500 to each applicant EUR 5,000 to be paid to the representatives jointly 3.", "24121/07 27/03/2007 Lev Aleksandrovich PONOMAREV 02/09/1941 Moscow Yuriy Vadimovich SAMODUROV 27/09/1951 Moscow Mikhail Aleksandrovich KRIGER 23/02/1960 Moscow Mikhail Yakovlevich SHNEYDER 19/09/1948 Moscow Ms K. Moskalenko, Ms A. Stavitskaya, Ms S. Davydova and Mr V. Shukhardin Solovetskiy Stone Memorial in central Moscow 03/09/2006 Proposal to change the date Dispersal, arrest and conviction of administrative offences (Mr Ponomarev was sentenced to a fine of RUB 2,000 and three days’ administrative detention; Mr Samodurov and Mr Kriger were sentenced to fines of RUB 500 each; and Mr Schneider was sentenced to a fine of RUB 1,000) Notification procedure: 20/11/2006 Taganskiy District Court of Moscow; Administrative Offence Proceedings: 28/09/2006; 17/10/2006 and 07/11/2006 Tverskoy District Court of Moscow Not claimed EUR 7,500 to each applicant EUR 5,000 to be paid to the representatives jointly 4. 7624/08 19/12/2007 Aleksey Ivanovich KANURIN 03/12/1954 Moscow Centre of Moscow 04/11/2006 Refusal to approve the event Notification procedure: 21/06/2007 Moscow City Court Not claimed Not claimed Not claimed 5. 53088/08 19/09/2008 Mikhail Nikolayevich SHARABANOV 23/03/1988 Nizhniy Novgorod Mr S. Shimovolos Lenin Square in Nizhniy Novgorod 10/11/2007 Proposal to change the date Escorting to the police station, administrative offence proceedings were brought but later discontinued Notification procedure: 25/03/2008 Nizhniy Novgorod regional Court; Administrative Offence Proceedings: 17/01/2008 Kanavinskiy District Court of Nizhniy Novgorod Not claimed Not claimed Not claimed 6. 64311/10 07/10/2010 Natalya Andreyevna PELETSKAYA 12/02/1990 Moscow Mr K. Terekhov Centre of Moscow 20/03/2010 Proposal to change the location Dispersal, arrest and conviction of an administrative offence (sentenced to a fine of RUB 500) Notification procedure: 12/11/2010 The Moscow City Court Administrative Offence Proceedings: 24/05/2010 Tverskoy District Court of Moscow Not claimed EUR 7,500 EUR 2,500 7. 6737/11 03/12/2010 Vadim Vilyevich KHAYRULLIN 27/01/1972 Kaliningrad Mr E. Markov Centre of Kaliningrad 20/03/2010 Proposal to change the location or date Escorting to the police station and conviction of an administrative offence (sentenced to RUB 1,000 Administrative Offence Proceedings: 20/08/2010 Leningradskiy District Court of Kaliningrad Civil claim against the refusal to approve the event and the arrest: 18/05/2011 The Kaliningrad Regional Court EUR 26 EUR 10,000 EUR 3,700 8.", "74971/11 01/11/2011 Aleksandr Vladimirovich KOSTYRIN 24/12/1944 Svetlogorsk Centre of Kaliningrad 20/03/2010 Proposal to change the location or date arrest Civil claim against the refusal to approve the event and the arrest: 08/06/2011 The Kaliningrad Regional Court Not claimed Not claimed Not claimed 9. 64746/13 10/11/2010 Yevgeniy Nikolayevich LABUDIN 09/03/1962 Kalinigrad Centre of Kaliningrad 20/03/2010 Proposal to change the location or date Arrest and conviction of an administrative offence Administrative Offence Proceedings: 19/07/2010 Leningradskiy District Court of Kaliningrad Not claimed Not claimed Not claimed [1]. Plus any tax that may be chargeable. [2]. Plus any tax that may be chargeable to the applicants.", "[3]. Plus any tax that may be chargeable to the applicants." ]

[ "FOURTH SECTION CASE OF NATUNEN v. FINLAND (Application no. 21022/04) JUDGMENT STRASBOURG 31 March 2009 FINAL 30/06/2009 This judgment may be subject to editorial revision. In the case of Natunen v. Finland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 10 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21022/04) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Jari Natunen (“the applicant”), on 9 June 2004.", "2. The applicant was represented by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The applicant alleged that the criminal proceedings against him had not been fair in that the principle of equality of arms and the presumption of innocence had not been respected and he had been deprived of adequate facilities for the preparation of his defence.", "4. On 13 March 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1962 and lives in Helsinki. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant was suspected of an aggravated drugs offence.", "On an unspecified date the public prosecutor brought charges against him and two other persons, L.J. and J.J. According to the indictment, the defendants had decided to obtain a large amount of amphetamine from Estonia. Between 28 and 29 September 2001 the applicant and J.J. made a trip to Estonia to arrange the purchase, acting on instructions from L.J. On 15 October 2001 the drugs, hidden in a truck, were brought to Finland by a fourth person.", "During this period the applicant kept in contact with the Estonian supplier by telephone. On 16 October 2001 the truck driver handed over the drugs to L.J. and J.J., who then hid them. Later in the evening J.J. returned for the drugs, as agreed with L.J. While J.J. was driving back to town, the police stopped and detained him and seized the drugs from his possession.", "In the meantime, the applicant picked up L.J. from a nearby petrol station. 8. Subsequently, all the defendants contested the above charge. The applicant denied any knowledge of the matter.", "He maintained that his trip to Estonia had only been for pleasure and that he had not received any instructions from L.J. relating to it. Nor had he kept any contact with the supplier. He further denied any knowledge of what had happened at the petrol station on 16 October 2001. Apparently all the defendants asserted that their collective enterprise had concerned a plan to purchase weapons and not drugs.", "9. On 1 February 2002 the applicant’s counsel sent a letter to the police inquiring whether all the telephone calls made between the three defendants by mobile phone had been included in the pre-trial investigation material. He also requested the police to confirm in writing that it was not possible to disclose to the defence the telephone metering information in the possession of the police. 10. In their response of 8 February 2002 the police stated that all the telephone calls pertaining to the investigated offence had been included in the pre-trial investigation material.", "The police further confirmed that the telephone metering information in their possession could not be disclosed as it was confidential. 11. The evidence obtained through telephone surveillance and produced before the court included 21 recorded telephone conversations and 7 recorded text messages between the defendants between 25 September and 16 October 2001, apparently all pertaining to the different stages of the alleged drugs offence. 12. On 14 February 2002 the Espoo District Court (käräjäoikeus, tingsrätten) found that the defendants had planned to purchase drugs and had carried out the plan together.", "It convicted them as charged and sentenced each of them to six and a half years’ imprisonment. As to the conviction of L.J. and J.J. the court relied mainly on the testimony of the truck driver and the fact that the drugs had been found in J.J.’s possession. As to its finding that all three defendants had acted in concert in committing the offence, the court relied on information obtained through telephone surveillance. According to the court, the numerous recordings of telephone conversations between the defendants consistently showed that there had been a common understanding about the plan to obtain the drugs several weeks before they were delivered.", "Their co-operation had begun on 28 September 2001, at the latest, when the applicant had made a trip to Estonia with J.J. Since that journey they had been showing concern about the delay in the delivery. The court found the defendants’ account of the plan to purchase weapons unsubstantiated. The court also relied on the recordings in concluding that the applicant had participated in the actual receiving of the drugs just as actively as the other defendants, even though he had not been there to receive them in person. 13.", "The applicant, along with the other parties, appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten). In his letter of appeal he claimed that all that had been established beyond dispute was that he had made a trip to Estonia and that he had been in contact with the other defendants by telephone, but that did not connect him to the offence of which he had been convicted. The District Court had failed to specify which telephone conversations proved that he had been an accomplice. 14. In his subsequent additional submission to the court the applicant also requested that the public prosecutor be ordered to produce all the recordings of the telephone conversations between the applicant and other defendants, as they would reveal that the dealings involving the defendants had related to matters other than drugs.", "The applicant contended that only a fraction of all these telephone conversations had been included in the pre-trial investigation material, thus giving a misleading impression of the nature of their association. If the court were to refuse this request, the defence should at least be granted access to all of the recordings. 15. The court requested the prosecutor to submit a reply regarding, inter alia, the above request. In his reply of 12 June 2002 the prosecutor stated that it was not disputed that the applicant had been in contact with J.L.", "and J.J. by telephone also concerning matters other than the purchase of drugs. These conversations had not, however, been included in the case material and had been destroyed, as was required under chapter 5a, section 13 of the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act no. 450/1987). Nor did the conversations in question, according to the prosecutor, relate to any other offence which would have allowed the police to keep the recordings without breaching the law. All the conversations that pertained to the matter had been retained, included in the case file and produced to the court.", "16. Having regard to the prosecutor’s reply, the Court of Appeal did not render a decision on the applicant’s request. On 13 December 2002, following an oral hearing, the court upheld the applicant’s conviction. It increased his prison sentence to seven years. 17.", "In its reasons the court stated, inter alia, that, apart from the testimonies given by the defendants, there was no evidence to support the allegations about purchasing weapons. Furthermore, the court found the defendants’ testimonies regarding those allegations not credible. It also found inconsistencies between the applicant’s testimony and some of the telephone conversations, which had been played back to the court. 18. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining that his conviction had been based mainly, and in practice, on the courts’ false interpretation of those telephone conversations which had been included in the case file.", "The defence had never been given access to a large number of recordings which had not been included therein, although a request to that end had been made during the pre-trial investigation. He submitted as evidence the response given by the police on 8 February 2002. As the recordings were subsequently destroyed, the applicant had been denied the right to assess their relevance for his defence. The applicant renewed his contention that the recordings which had not been included in the case file would have shown that he had been involved with the co-defendants in a transaction not related to the purchase of drugs. 19.", "On 19 December 2003 the Supreme Court refused leave to appeal. II. RELEVANT DOMESTIC LAW 20. Chapter 5a, section 2 of the Coercive Measures Act, as in force at the relevant time, provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him, or calls received by a suspect through such an extension, if the information thus obtainable could be assumed to be of vital importance for solving a crime. This permission could only be granted for serious offences listed in the provision, including aggravated drugs offences.", "Weapons offences were not included in the list. 21. Chapter 5a, sections 12 and 13 of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked. Section 13 allowed, however, the retention of recordings pertaining to such [other] offences where the interception of telecommunications could be permitted. Recordings which were not to be destroyed were to be retained for five years after the case had been resolved with legally binding effect or removed from the docket.", "22. Chapter 5a, section 13 of the Coercive Measures Act was amended by Act no. 646/2003, which came into force on 1 January 2004. The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence or pertaining to an offence other than the one covered by the authorisation, is to be destroyed after the case has been resolved with legally binding effect or removed from the docket. The Government Bill (hallituksen esitys, regeringens proposition, no.", "52/2002) concerning the amendment stated that, according to the provision in force at the time, superfluous information was to be destroyed as soon as it had been checked. Information supporting the innocence of the suspect could thus also be destroyed as superfluous information. The provision was thus proposed for amendment in order to ensure that all the material would be available for the [subsequent] proceedings, where necessary. 23. Section 1 of the Act on Public Prosecutors (laki yleisistä syyttäjistä, lag om allmänna åklagare, Act no.", "199/1997) provides, inter alia, that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case, the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties. 24. The same principle applies to the conduct of the police, which has the duty, under section 7 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987) to investigate and take into consideration the facts both for and against the suspect. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (b) OF THE CONVENTION 25. The applicant complained under Article 6 §§ 1 and 3 (b) of the Convention that the proceedings had been unfair. The destruction of a major part of the recordings by the police had not been in conformity with the principle of equality of arms and had deprived him of the right to have adequate facilities for the preparation of his defence. Article 6 of the Convention reads, in relevant parts, as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.", "Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; ...” 26. The Government contested those arguments. A. Admissibility 27. The Court notes that those complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "They must therefore be declared admissible. B. Merits 1. Submissions of the parties 28. The applicant argued that the proceedings had been unfair in that the police alone had had discretion to determine which recordings were to be included in the case file and made available to the prosecutor, the defence and the courts.", "As a major part of the recordings had been destroyed, the courts had not been able to assess fully his contention in respect of those recordings revealing the true nature of his actions. Thus, the principle of equality of arms had not been respected. The applicant also argued that he had not had adequate facilities for the preparation of his defence as the police had destroyed the evidence before the charges had been brought. 29. To complement the facts of the case, the applicant submitted copies of his inquiry sent to the police (see paragraph 9 above) and the letter of response thereto (see paragraph 10 above).", "30. The Government submitted that all the recordings pertaining to the charges had been retained, included in the pre-trial investigation material as transcripts and presented as evidence in court. Any other recordings of telephone conversations had been destroyed, as required by the law in force at the time. The destruction of such recordings which had not pertained to the offence charged and which had not been produced to the court could not constitute a violation of Article 6 §§ 1 and 3 (b) of the Convention. Moreover, the decisions by the authorities in respect of the applicant’s requests to gain access to the totality of the recordings had been taken in conformity with the requirements of Article 6 § 1 of the Convention.", "31. The Government reiterated that it was the task of the domestic courts to assess the evidence presented to them and to decide whether it was sufficient for a conviction. In the present case the national courts had assessed the evidence submitted and found the applicant guilty as charged. The Government maintained that the parties had had equal access to the same recordings and other documents that had played a part in the formation of the courts’ opinion. 32.", "The Government further pointed out that the Court’s case-law obliges the prosecution authorities to disclose to the defence all material evidence in their possession for or against the accused. However, the entitlement to disclosure of relevant evidence was not an absolute right. In this case, the recordings of telephone conversations not pertaining to the offence had been destroyed. The prosecution had thus been unable to disclose to the defence the requested recordings. However, it had been possible to obtain information about all the telephone conversations between the defendants by hearing them in person in court.", "33. The Government submitted that the rights of the defence had been further safeguarded by the principle of objectivity governing the duties of public prosecutors, as provided in section 1 of the Act on Public Prosecutors. The prosecutor had co-operated with the police during the pre-trial investigation and had thus been able to participate in the selection of the recordings included in the case file, based on his view of which information did or did not relate to the matter. 34. The Government further contended that the applicant had not insisted that the destroyed recordings had contained material favourable to his defence until after having submitted his letter of appeal to the Court of Appeal.", "The Government argued that the applicant could have described the contents of the destroyed telephone calls during the pre-trial investigation as well as in the court proceedings. 35. In the light of the above, the Government argued that the principle of equality of arms had been respected by the authorities and the applicant had been afforded adequate facilities to prepare his defence in accordance with Article 6 §§ 1 and 3 (b) of the Convention. It followed that there had been no violation of Article 6 §§ 1 and 3 (b) of the Convention. 36.", "In their further observations the Government argued that the applicant had in his initial application only complained about the lack of access to the totality of recorded telephone conversations and that the facts concerning telephone metering information, as they transpired from the fresh documents (see paragraph 29 above), constituted a new complaint. In that part the application had been submitted out of the six months’ time-limit. Furthermore, the applicant had not raised the said issue before the national courts and had thus failed to exhaust the domestic remedies in that respect. 2. The Court’s assessment 37.", "The Court firstly notes that the applicant’s complaints, as submitted in his application, only concerned lack of access to the totality of recordings of telephone conversations between himself and the other defendants, and not the telephone metering information obtained through the secret surveillance. Rather than a fresh complaint, his subsequent submission of letters relating to the facts of the case may be regarded as a response to the Government’s contention that he had not pleaded the relevance of the destroyed recordings to his defence until having submitted the letter of appeal. For this reason the Court does not find it necessary to examine the Government’s argument set out in paragraph 36 above. As to the other submissions of the parties, the Court states the following. 38.", "The Court reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1. In the circumstances of the case it finds it unnecessary to examine the applicant’s allegations separately from the standpoint of paragraph 3 (b), since they amount to a complaint that he did not receive a fair trial. It will therefore confine its examination to the question of whether the proceedings in their entirety were fair (see Edwards v. the United Kingdom, 16 December 1992, §§ 33-34, Series A no. 247‑B, and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 59, ECHR 2000‑II).", "39. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see, mutatis mutandis, Rowe and Davis, cited above, § 60, with further references). 40.", "However, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see, mutatis mutandis, Rowe and Davis, cited above, § 61, with further references).", "41. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. In any event, in many cases, such as the present one, where the evidence in question has never been revealed, it would not be possible for the Court to attempt to weigh the public interest in non-disclosure against that of the accused in having sight of the material. It must therefore scrutinise the decision-making procedure to ensure that, as far as possible, it complied with the requirements to provide adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (see, mutatis mutandis, Rowe and Davis, cited above, § 62). 42.", "More specifically, Article 6 § 3 (b) guarantees the accused “adequate time and facilities for the preparation of his defence” and therefore implies that the substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see Can v. Austria, no. 9300/81, § 53, Commission’s report of 12 July 1984, Series A no. 96, and Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008).", "Furthermore, the facilities which should be enjoyed by everyone charged with a criminal offence include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see C.G.P. v. the Netherlands, (dec.), no. 29835/96, 15 January 1997, and Galstyan v. Armenia, no. 26986/03, § 84, 15 November 2007). 43.", "Failure to disclose to the defence material evidence, which contains such particulars which could enable the accused to exonerate himself or have his sentence reduced would constitute a refusal of facilities necessary for the preparation of the defence, and therefore a violation of the right guaranteed in Article 6 § 3 (b) of the Convention (see C.G.P., cited above). The accused may, however, be expected to give specific reasons for his request (see Bendenoun v. France, 24 February 1994, § 52, Series A no. 284) and the domestic courts are entitled to examine the validity of these reasons (see C.G.P., cited above). 44. Turning to the present case, the Court observes that the number of the destroyed recordings, or the contents thereof, cannot be verified from the material submitted.", "The Government have not, however, contested the applicant’s submission that the amount of such recordings was of some significance. Nor have they been able to provide any specific information about their contents. 45. As to the Government’s contention that the applicant had only pleaded the relevance of the destroyed recordings after having submitted his letter of appeal to the Court of Appeal, the Court notes that under domestic law the Court of Appeal was empowered to consider questions of both fact and law, and it was still open to the applicant to request new evidence to be produced at that stage. Moreover, the Government have not argued that the requested recordings would, in fact, have been available in the District Court proceedings, any more than in the proceedings before the Court of Appeal.", "The Court notes in this connection that, although the actual time of destruction of the recordings in question remains unclear, it had presumably taken place in the course of the pre-trial investigation. In this respect the Court refers to the relevant provision of the Coercive Measures Act in force at the relevant time (see paragraph 21 above). As to the Government’s argument that the applicant could have described the contents of the destroyed recordings, the Court considers that the applicant could not have been expected to announce his alleged involvement in a different offence, punishable by law, prior to any charges having been brought against him. 46. The Court reiterates that the requirements of Article 6 presuppose that having given specific reasons for the request for disclosure of certain evidence which could enable the accused to exonerate himself, he should be entitled to have the validity of those reasons examined by a court.", "Although the applicant, in this case, must have known the contents of the destroyed recordings, as far as they involved him, and even if he had been able to put questions during the trial concerning all of the conversations with the other defendants, the Court points out that the national courts did not find the defendants’ allegations about the purchase of illegal weapons credible, for lack of other supporting evidence (see paragraphs 12 and 17 above). Furthermore, the Court of Appeal did not refuse to order the disclosure of the requested recordings on the ground that the applicant had not given specific and acceptable reasons for his request. Instead, it declined to render a decision in that respect, as the recordings had been destroyed and could thus not have been disclosed to the defence or produced to the court (see paragraphs 15 and 16 above). 47. Even though the police and the prosecutor were obliged by law to take into consideration both the facts for and against the suspect, a procedure whereby the investigating authority itself, even when co-operating with the prosecution, attempts to assess what may or may not be relevant to the case, cannot comply with the requirements of Article 6 § 1.", "Moreover, it is not clear to what extent the prosecutor was, in fact, involved in the decision to destroy those recordings which were not included in the case file. In this case, the destruction of certain material obtained through telephone surveillance made it impossible for the defence to verify its assumptions as to its relevance and to prove their correctness before the trial courts. 48. The Court finds that the present case is different from, inter alia, Fitt v. the United Kingdom [GC] (no. 29777/96, ECHR 2000‑II) and Jasper v. the United Kingdom [GC] (no.", "27052/95, 16 February 2000) where the Court was satisfied that the defence were kept informed and were permitted to make submissions and participate in the decision-making process as far as possible and noted that the need for disclosure was at all times under the assessment of the trial judge, providing a further, important, safeguard. In those cases the Court found no violation under Article 6 § 1 (see Fitt, §§ 48-49, and Jasper, §§ 55-56). The Court recalls that, in this case, the decision regarding the undisclosed evidence was, presumably, made in the course of the pre-trial investigation without providing the defence with the opportunity to participate in the decision-making process. 49. In the present case the Court further notes that the contested measure stemmed from a defect in the legislation, in that it failed to offer adequate protection to the defence, rather than any misconduct of the authorities, who were obliged by law, in force at the time, to destroy the impugned recordings (see paragraph 21 above).", "The Court observes that in the Government Bill for the amendment of the Coercive Measures Act it was considered problematic that information supporting the innocence of the suspect could be destroyed before the resolution of the case (see paragraph 22 above). The relevant provision was amended with effect from 1 January 2004 with a view to better safeguarding the rights of the defence. This amendment, however, came too late for the applicant. 50. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3 (b) of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 51. The applicant also complained under Article 6 § 2 of the Convention that the presumption of innocence had not been respected as he had been made to bear the burden of proof about not being involved in the purchase of illegal drugs. The said Article reads: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 52.", "The Government contested that argument. 53. The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them, while it is for the Court to ascertain that the proceedings considered as a whole were fair, which in the case of criminal proceedings includes the observance of the presumption of innocence. Article 6 § 2 requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. Thus, the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence (see Telfner v. Austria, no.", "33501/96, § 15, 20 March 2001, with further references). 54. The Court observes that, in this case, and subject to its above findings on the applicant’s complaint under Article 6 §§ 1 and 3 (b) of the Convention, the District Court convicted the applicant after adversarial proceedings, in which he had the possibility to challenge the evidence produced against him. The applicant’s conviction was upheld by the Court of Appeal after a full review of the case in an oral hearing. Both courts gave reasons for their decisions.", "Having regard to the facts of the case, and given its subsidiary role regarding the assessment of evidence, the Court cannot conclude that the prosecutor had failed to establish a convincing prima facie case against the applicant. There is no indication that the domestic courts had a preconceived idea of the applicant’s guilt. In these circumstances it cannot be said that the domestic courts had shifted the burden of proof to the defendant (see, a contrario, Telfner v. Austria, cited above, § 18). It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 55. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 56. The applicant requested, firstly, that the Court declare that the most appropriate form of redress would be, in principle, to order the re-opening of the case. In the event of a finding that the requirements of Article 6 § 1 had not been complied with, the charge against the applicant should be dismissed.", "Secondly, in respect of non-pecuniary damage, the applicant claimed 3,000 euros (EUR). 57. The Government considered the claim excessive as to quantum. Any award should not exceed EUR 2,500. 58.", "The Court accepts that the lack of guarantees of Article 6 has caused the applicant non-pecuniary damage, which cannot be made good by the mere finding of a violation. Making its assessment on an equitable basis, it awards him EUR 2,500 in respect of non-pecuniary damage. The Court considers that the award of non-pecuniary damage provides a sufficient redress in this case, having regard, in particular, to the destruction of recordings. B. Costs and expenses 59.", "The applicant claimed EUR 4,278.88 (inclusive of value-added tax) for the costs and expenses incurred before the Court. 60. The Government pointed out that the Court had invited observations only in respect of complaints submitted under Article 6 §§ 1 and 3 (b) of the Convention and that the costs should be reduced accordingly. Were the Court to consider that the general costs, such as postage and copying costs, were not already included in counsel’s fee, the Government considered them reasonable as to quantum. The total award for the costs and expenses should not exceed EUR 3,200.", "61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the application to the Court was examined under the joint procedure provided for under Article 29 § 3 of the Convention and that the application was only partly successful. Taking into account all the circumstances, the Court considers it reasonable to award the sum of EUR 3,800 (inclusive of value-added tax) for the proceedings before the Court. C. Default interest 62.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the lack of equality of arms and the right to adequate facilities for the preparation of the applicant’s defence admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention taken together with Article 6 § 3 (b) of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 3,800 (three thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 31 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF CARPOV v. THE REPUBLIC OF MOLDOVA (Application no. 6338/11) JUDGMENT STRASBOURG 12 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Carpov v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Julia Laffranque, President,Valeriu Griţco,Stéphanie Mourou-Vikström, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 22 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 6338/11) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Sergiu Carpov (“the applicant”), on 13 January 2011.", "2. The applicant was represented by Mr V. Duca, a lawyer practising in Orhei. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari. 3. On 20 December 2017 notice of the application was given to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1963 and lives in Orhei. 5. In September 2009 the applicant initiated civil proceedings against a company which was in process of insolvency.", "6. On 18 December 2009 the Drochia District Court found in favour of the applicant and ordered the defendant company to pay him 24,957 Moldovan Lei (MDL) (the equivalent of 1,413 euros (EUR)) for pecuniary damage and MDL 749 (the equivalent of EUR 42) for costs and expenses. The representative of the defendant company was not present at the hearing. 7. On 28 December 2009 the secretariat of the Drochia District Court sent a copy of the reasoned judgment to the defendant company by ordinary mail.", "8. On 11 January 2010 an enforcement writ was issued to the applicant by the same court in respect of the judgment of 18 December 2009. 9. On 10 February 2010, in a different set of proceedings concerning the insolvency of the defendant company, the company’s insolvency administrator updated the list of creditors by making express reference to the judgment of 18 December 2009 and to the exact amounts awarded in that judgment. The court which treated the insolvency issued a decision concerning the updated list of creditors on the same date.", "10. On 26 April 2010 the insolvency administrator of the defendant company lodged an appeal against the judgment of 18 December 2009. The applicant objected to the appeal by arguing that it had been time-barred. He indicated that the time-limit for lodging the appeal had expired twenty days after the serving of the impugned judgment and that the insolvency administrator of the defendant company had been aware of the judgment of 18 December 2009 since in February 2010 he had informed the court dealing with the insolvency proceedings about the judgment in question. 11.", "On 28 September 2010 the Bălţi Court of Appeal admitted the appeal lodged by the insolvency administrator of the defendant company and quashed the judgment of 18 December 2009. The Court of Appeal did respond to the objection raised by the applicant and, after re-examining the merits of the case, dismissed the applicant’s action against the defendant company. The applicant lodged an appeal on points of law raising the same arguments as in his appeal. 12. On 26 January 2011 the Supreme Court of Justice dismissed the applicant’s appeal on points of law and upheld the judgment of the lower court.", "The Supreme Court did not make any comment about the applicant’s objection concerning the late appeal. II. RELEVANT DOMESTIC LAW 13. According to Article 362 of the Code of Civil Procedure, as in force at the material time, a judgment issued by a first instance court could be challenged by way of an appeal within twenty days as from the date of service of the reasoned judgment. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14. The applicant complained that the Bălţi Court of Appeal’s decision to quash the judgment of 18 December 2009, which was in his favour, following an appeal which had been lodged out of time, had breached his right to a fair trial under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” A. Admissibility 15. 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 16. The applicant argued that the judgment of 18 December 2009 was sent to the defendant company on 28 December 2009. Since no appeal was lodged by the defendant it became final and an enforcement writ was issued on 11 January 2010.", "The defendant company received the judgment in question and on 10 February 2010 its insolvency administrator provided the court dealing with the insolvency procedure with details from the judgment. The appeal lodged by the defendant company in April 2010 was lodged out of time. Therefore, the Court of Appeal’s decision to admit the appeal lodged by the defendant company amounted to a breach of Article 6 § 1 of the Convention. 17. The Government submitted that the defendant company’s representative was not present at the hearing of 18 December 2009 when the impugned judgment was delivered.", "He learned about that judgment only on 23 April 2010 when he requested a copy of the judgment from the secretariat of the Drochia District Court. He lodged the appeal three days later, namely within twenty days from the moment when he received a copy of the impugned judgment. Therefore, the appeal was lodged within the statutory time-limit. The Government did not deny the fact that, on 28 December 2009, the secretariat of the Drochia District Court sent a copy of the judgment of 18 December 2009 to the defendant company. However, they argued that there was no evidence that the defendant company had received it.", "Therefore, the twenty-day time limit shall not be calculated from that day, but from 23 April 2010. 18. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII).", "19. In Roşca v. Moldova, no. 6267/02, 22 March 2005, the Court found that the request for annulment procedure, under which a final judgment could be challenged indefinitely by the Prosecutor General, was in breach of the principle of legal certainty. A violation was found on the same grounds in Popov v. Moldova (no. 2) (no.", "19960/04, 6 December 2005), where a final judgment was quashed in a manner incompatible with Article 6. In both cases the Court held that the “losing” by a litigant of a final favourable judgment was incompatible with the Convention. 20. In the present case, the applicant also “lost” a judgment favourable to him. The dispute between the parties is whether the appeal dated 26 April 2010 was lodged within the legal time-limit in the sense of Article 362 of the Code of Civil Procedure.", "21. The Court notes that it is undisputed between the parties that on 28 December 2009 the Drochia District Court sent a copy of the judgment dated 18 December 2009 to the defendant company. The Government disputed the fact that that copy had reached the defendant and argued that there was no evidence of receipt. Nevertheless, they did not offer any explanation to the fact that on 10 February 2010 the insolvency administrator of the defendant company was aware of the judgment and that he knew about the exact amounts of compensation awarded by it (see paragraph 9 above). In the absence of any plausible explanation, the Court considers it established that the defendant company received a copy of the judgment at the latest on 10 February 2010.", "In such circumstances, the appeal dated 26 April 2010 appears to have been lodged clearly outside the twenty-day time‑limit provided for by Article 362 of the Code of Civil Procedure. 22. The Court further notes that, by allowing the appeal lodged by the defendant company, the Court of Appeal and later the Supreme Court of Justice set at naught an entire judicial process which had ended in a final and enforceable judicial decision and thus res judicata. Thus, they infringed the principle of legal certainty and breached the applicant’s right to a fair hearing under Article 6 § 1 of the Convention (see Brumărescu v. Romania, cited above, §§ 61 and 62). 23.", "There has thus been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 24. The applicant complained that the quashing of the judgment of 18 December 2009 had had the effect of infringing his right to peaceful enjoyment of his possessions as secured by 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. Admissibility 25. 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 26. The Court reiterates that a judgment debt may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no.", "59498/00, § 40, ECHR 2002-III, and the cases cited therein). Furthermore, quashing such a judgment after it has become final and unappealable will constitute an interference with the judgment beneficiary’s right to the peaceful enjoyment of that possession (see Brumărescu, cited above, § 74). Even assuming that such an interference may be regarded as serving a public interest, the Court finds that it was not justified since a fair balance was not preserved and the applicant was required to bear an individual and excessive burden (cf. Brumărescu, cited above, § 75-80). 27.", "It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary Damage 29.", "The applicant claimed EUR 3,200 for pecuniary damage suffered as a result of the quashing of the final judgment favourable to him, of which MDL 24,957 was the amount he was entitled to by virtue of the final judgment of the Drochia District Court of 18 December 2009 and the rest corresponded to the lost interest calculated by him on the basis of the provisions of the Civil Code concerning the calculation of default interest. 30. The Government asked the Court to dismiss the applicant’s claims for pecuniary damage. 31. The Court considers that the applicant must have suffered pecuniary damage as a result of the impossibility to use and enjoy the money awarded to him by the final judgment of 18 December 2009 (see Prodan v. Moldova, no.", "49806/99, § 71, ECHR 2004‑III (extracts). Taking into consideration the circumstances of the case under consideration, the Court awards the applicant the sum of EUR 2,500 for pecuniary damages. B. Non-Pecuniary Damage 32. The applicant claimed EUR 2,500 for the non-pecuniary damage suffered as a result of the quashing of the final judgment favourable to him. 33.", "The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss it. 34. The Court considers that the applicant must have been caused a certain amount of stress and frustration as a result of the quashing of the final judgment of 18 December 2009 and of the impossibility to use his money for a period of approximately nine years. It awards him EUR 2,000 for non-pecuniary damage. B.", "Costs and expenses 35. The applicant also claimed EUR 1,480 for the costs and expenses incurred before the Court. 36. The Government disagreed with the amount claimed by the applicant and asked the Court to dismiss it. 37.", "The Court reiterates that in order for costs and expenses to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 240, 23 February 2016. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court awards the entire amount claimed for costs and expenses. C. Default interest 38. 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.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 1,480 (one thousand four hundred and eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Julia LaffranqueDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF KOROVINA AND OTHERS v. RUSSIA (Applications nos. 36775/05, 35376/06 and 30165/08) JUDGMENT STRASBOURG 12 July 2016 This judgment is final but it may be subject to editorial revision. In the case of Korovina and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 21 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos. 36775/05, 35376/06 and 30165/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals.", "The applicants’ names and the dates of their applications to the Court appear in the Appendix. 2. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation to the European Court of Human Rights, and Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicants complained, inter alia, of the quashing of final judgments by way of supervisory review between 2003 and 2008.", "4. On 19 January 2007, 27 August 2009 and 19 June 2012 the applications were communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. All the applicants were parties to civil proceedings in which the first‑instance and appeal courts found in their favour.", "These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix). II. RELEVANT DOMESTIC LAW 6. The relevant domestic law governing the supervisory review procedure in force between 1 February 2003 and 7 January 2008 is summarised in Kot v. Russia (no. 20887/03, § 17, 18 January 2007).", "THE LAW I. JOINDER OF THE APPLICATIONS 7. Given that these three applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court will consider them in a single judgment (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03, 19089/04, 42059/04, 27800/04, 43505/04, 43538/04, 3614/05, 30906/05, 39901/05 and 524/06, § 15, 14 January 2010). II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE APPLICANTS’ FAVOUR 8. All the applicants complained of a violation of Article 6 of the Convention on account of the quashing by way of supervisory review of the final judgments in their favour. They further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to the same facts. The Court will consider all these cases in the light of both provisions, which, in so far as relevant, read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law ...” A. Admissibility 9. The Court notes that those complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits 10. The Government argued that the supervisory review proceedings resulting in the quashing of the judgments at issue had been lawful: they had been initiated by the defendant authorities within the time-limits provided by domestic law. The supervisory review courts had quashed lower courts’ judgments that had been based on an incorrect application of the substantive law, thus correcting flagrant injustices and eliminating dangerous precedents. 11.", "The applicants reiterated their complaints. 12. The Court observes that it has already found numerous violations of the Convention on account of the quashing of final judgments by way of supervisory review procedure, as in force at the material time (see Kot, cited above, § 29). There is no reason to depart from that finding in the present case. 13.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 14. Lastly, the applicants in the Korovina and Solovyeva cases, in addition complained under Articles 6, 13, 14, 17, 18 of the Convention and Article 1 of Protocol No.", "1 to the Convention of other violations, such as the length of proceedings, lack of an effective domestic remedy against the quashing by way of supervisory review of final domestic judgments in the applicants’ favour, the impartiality of the courts and the outcome of the proceedings. 15. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that they are manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 16. 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 17. All the applicants claimed only non-pecuniary damage. Ms Solovyeva and Mr Zaychuk claimed 2,000 euros (EUR) and EUR 3,000, respectively.", "Ms Korovina left the determination of the amount of compensation to the Court’s discretion. 18. The Government considered their claims as being excessive and unreasonable. 19. The Court finds that all the applicants have suffered non-pecuniary damage which cannot be compensated by the mere finding of a violation.", "In these circumstances and having regard to the principles developed in its case-law on determination of compensation in similar cases and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each of the applicants the sum of EUR 2,000 in respect of non-pecuniary damagе (see Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russia, nos. 23113/08 and 68 others, §§ 22‑24, 15 October 2009). B. Costs and expenses 20. The applicants did not submit claims for costs and expenses.", "Accordingly, the Court does not award them any sum under that head. C. Default interest 21. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares, in respect of all the applications, the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the quashing by way of supervisory review of final domestic judgments in the applicants’ favour admissible and the remainder of the applications inadmissible; 3. Holds, in respect of all the applicants, that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the quashing by way of supervisory review proceedings of the judgments in the applicants’ favour; 4. Holds (a) that the respondent State is to pay each to Ms Korovina, Ms Solovyeva and Mr Zaychuk, within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 5.", "Dismisses the remainder of Mr Zaychuk’s claim for just satisfaction. Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident APPENDIX No. Application no. and date of introduction Applicant name Date of birth Place of residence Nationality Final domestic judgment a) date of delivery b) date of becoming final Quashing 36775/05 08/08/2005 Antonina Sergeyevna KOROVINA 26/02/1930 Syzran Russian Syzran Town Court29/12/200301/03/2004 Presidium of the Samara Regional Court21/04/2005 35376/06 31/07/2006 Natalya Nikolayevna SOLOVYEVA 21/04/1979 St Petersburg Russian Sovetskiy District Court of Bryansk23/04/200417/06/2004 Presidium of the Bryansk Regional Court01/03/2006 30165/08 17/05/2008 Aleksandr Anatolyevich ZAYCHUK 31/08/1977 Kavkazskiy Russian Cherkessk Town Court 10/09/200710/09/2007 (on appeal) Presidium of the Supreme Court of the Republic of Karachaevo-Cherkessiya 19/12/2007" ]

[ "THIRD SECTION CASE OF ASATRYAN v. ARMENIA (Application no. 24173/06) JUDGMENT STRASBOURG 9 February 2010 FINAL 09/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Asatryan v. Armenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Elisabet Fura,Boštjan M. Zupančič,Alvina Gyulumyan,Ineta Ziemele,Luis López Guerra,Ann Power, judges,and Santiago Quesada, Section Registrar, Having deliberated in private on 19 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24173/06) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Ms Silva Asatryan (“the applicant”), on 22 May 2006. 2. The applicant was represented by Mr K. Mezhlumyan, a lawyer practising in Yerevan The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 3. On 6 December 2007 the President of the Third Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lives in Yerevan. 5.", "On 23 September 2005, at 5.50 p.m., the applicant was taken into custody on suspicion of attempted murder. 6. On 26 September 2005 formal charges were brought against the applicant. 7. On the same date the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the investigator’s relevant motion and ordered the applicant’s detention on remand for a period of two months, to be calculated from 23 September 2005.", "8. On 14 November 2005 the investigator filed a motion with the District Court, seeking to have the applicant’s detention on remand prolonged for another two months. 9. On 22 November 2005 the District Court examined and dismissed this motion. This decision was subject to appeal.", "10. On 23 November 2005 at around 11 a.m. a copy of this decision was presented by the applicant’s lawyer to the Chief of the Yerevan-Kentron Detention Facility («Երևան-Կենտրոն» քրեակատարողական հիմնարկի պետ) where the applicant was held. 11. On the same date the prosecutor lodged an appeal against the above decision. 12.", "Later that day at 5.30 p.m. the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) commenced the examination of the prosecutor’s appeal. The applicant was escorted to the hearing by four national security officers in an official car. 13. At 5.45 p.m. the applicant’s lawyer arrived and requested a ten-minute recess to be able to consult with the applicant. The Government alleged that the lawyer was deliberately late for the hearing, while the applicant claimed that her lawyer was informed by telephone about this hearing only at 5.30 p.m. 14.", "At 5.50 p.m. the applicant’s detention period authorised by the decision of 26 September 2005 expired. 15. Following the recess, the lawyer challenged the impartiality of the bench. He first alleged that the court had not given the applicant sufficient time to prepare her defence and also failed to ensure equality of arms. Furthermore, there were four national security officers in the court building who prevented the applicant, who was formally already at liberty, from going out of the building.", "Thus, the fact that such things were happening in the building of the Court of Appeal suggested that the outcome of the proceedings was already pre-determined. 16. The court departed to the deliberation room to examine this challenge, after which it returned and announced its decision dismissing it. 17. Thereafter another twenty-minute recess was announced by the court for the defence to be able to familiarise itself with the prosecutor’s appeal and the materials of the case.", "During the recess an ambulance was called because the applicant felt unwell. Her blood pressure rose to 180/100 but no injections could be administered as she was allergic, so the doctor recommended adjourning the hearing. 18. The hearing resumed at 8.03 p.m. The applicant’s lawyer requested the adjournment of the hearing in view of the deterioration of the applicant’s health and in order for him to be able to familiarise himself with the prosecutor’s appeal in adequate conditions.", "The court granted this request and adjourned the hearing until 1 p.m. on 24 November 2005. 19. The court hearing was over at around 8.30 p.m. 20. The applicant alleged and the Government did not dispute that during the entire court hearing she was monitored by four national security officers and was not allowed to move freely, to leave the courtroom during the breaks or to go home. After the court hearing was over, she was forcibly taken by these officers and pushed into the same car and taken back to the Yerevan-Kentron Detention Facility.", "This was done after one of the officers had a private consultation and received instructions from the presiding judge in the deliberation room. 21. On 24 November 2005 at 1 p.m. the Court of Appeal resumed the examination of the prosecutor’s appeal. The applicant was not present at this hearing. 22.", "The applicant’s lawyers again challenged the impartiality of the bench, alleging that the court had manifested a biased attitude. In particular, the court summoned a hearing on the prosecutor’s appeal immediately before the expiry of the applicant’s detention period. Furthermore, the court did not release the applicant despite the fact that her detention had not been prolonged. Finally, after the hearing was over, the presiding judge departed to the deliberation room where he had a consultation with a national security officer, as a result of which it was decided to keep the applicant in detention. Thereafter she was transported to a national security isolation cell.", "The lawyers claimed that all the above suggested that the Court of Appeal was not impartial. 23. The court examined and dismissed this challenge. 24. Thereafter, one of the applicant’s lawyers made a declaration stating that, following the court hearing of 23 November 2005, the applicant had been taken away by national security officers in an unknown direction, despite the fact that she was already free by virtue of the law.", "The lawyers refused to participate in the hearing in such circumstances and left the courtroom. 25. The Court of Appeal examined the prosecutor’s appeal in their absence and decided to quash the decision of the District Court of 22 November 2005 and to prolong the applicant’s detention on remand for another two months. 26. On 28 November 2005 one of the applicant’s lawyers addressed a letter to the Chief of the Yerevan-Kentron Detention Facility, complaining: “... You ..., as the chief of administration of the detention facility where [the applicant] is kept, at 5.45 p.m. on 23 November 2005 not only did not release her, but had her escorted to court by four officers in an official car having State licence no.", "150 SS 02, during the entire [court hearing] you monitored her actions until 8.30 p.m. on [that date], forbidding her to move freely, and at around 8.30-8.45, with the assistance of the same officers, you forcibly (holding her arms, pushing her) placed her in the above car and transported her to the Yerevan-Kentron Detention Facility where you received her, according to the information at our disposal, without a relevant court decision. In that period (between 9 p.m. and 11 p.m.) the defence called you on numerous occasions and you stated that you would keep [the applicant] until the court hearing scheduled for 1 p.m. on the next day was over...” 27. On 5 December 2005 the applicant’s lawyers lodged an appeal on points of law against the Court of Appeal’s decision. In their appeal, they again complained about the fact that the applicant had not been released from custody on 23 November 2005. 28.", "On 8 December 2005 the applicant’s lawyers made a similar declaration addressed to the Prosecutor General. 29. By a letter of 9 December 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) returned the appeal since it was no longer competent to examine it following the constitutional amendments. II. RELEVANT DOMESTIC LAW A.", "The Code of Criminal Procedure (CCP) 30. The relevant provisions of the CCP read as follows: Article 11: Security of person “5. The court, the body of inquest, the investigator and the prosecutor are obliged immediately to release any person illegally deprived of his liberty. The chief of administration of a detention facility does not have the right to receive a person for purposes of detention without a relevant court decision and is obliged immediately to release any person whose period of detention has expired.” Article 136: Imposition of a preventive measure “2. Detention ... shall be imposed only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court examination of the criminal case...” Article 137: Detention “5.", "The court’s decision to choose detention as a preventive measure can be contested before a higher court.” Article 138: Detention period “1. The accused’s detention period shall be calculated from the moment of him being actually taken into custody at the time of the arrest... ... 3. In the pre-trial proceedings of a criminal case the detention period cannot exceed two months, except for cases prescribed by this Code... 4. In the pre-trial proceedings of a criminal case the accused’s detention period can be prolonged by a court for up to one year in view of the particular complexity of the case.” Article 139: Prolongation of the detention period “1. If it is necessary to prolong the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period.", "The court, if it agrees on the necessity of prolonging the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period. ... 3. When deciding on the prolongation of the accused’s detention period, the court shall prolong the detention period within the limits prescribed by this Code, on each occasion for a period not exceeding two months.” Article 141: Obligations of the administration of a detention facility “The administration of a detention facility is obliged: ... (10) immediately to release a person kept in detention without an appropriate court decision or whose detention period imposed by a court decision has expired.” Article 142: Releasing the accused from detention “1. The accused must be released from detention upon the decision of the relevant authority dealing with the criminal case, if: ... (4) when deciding on the question of detention, the detention period set by the court has expired and has not been prolonged... ... 3. ...", "In cases envisaged under [sub-paragraph 4] of paragraph 1 of this Article ... the chief of administration of the detention facility shall immediately release the detainee.” Article 150: Appeals against preventive measures “2. A court decision imposing a preventive measure can be contested before the court of appeal.” B. The Law on Conditions for Holding Arrested and Detained Persons («Ձերբակալված և կալանավորված անձանց պահելու մասին» ՀՀ օրենք) 31. The relevant provisions of the Law read as follows: Section 13: Rights of arrested and detained persons “An arrested or detained person is entitled to ... lodge applications and complaints, both himself and through his lawyer or lawful representative, with ... the courts...” Section 18: The procedure for examining proposals, applications and complaints of arrested and detained persons “...[C]omplaints ... addressed to ... a judge ... shall be sent to [him] in a sealed envelope within one day.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 32.", "The applicant complained that her detention between 5.50 p.m. on 23 November 2005 and the time when the Criminal and Military Court of Appeal decided on 24 November 2005 to prolong her detention was unlawful. She invoked Article 5 §§ 1 (c) and 4 of the Convention which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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; ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A.", "Article 5 § 1 (c) of the Convention 1. The parties’ submissions 33. The Government admitted that the applicant had indeed been deprived of her liberty between 5.50 p.m. on 23 November 2005 and the moment when the Criminal and Military Court of Appeal decided on the next day to prolong her detention. They claimed, however, that she had failed to exhaust the domestic remedies. In particular, it was the administration of the Yerevan-Kentron Detention Facility that was responsible for the applicant’s continued unlawful detention, by not taking any steps to release her despite having been presented with a copy of the District Court’s decision of 22 November 2005.", "The applicant, however, failed to challenge the inaction of the administration before the domestic courts. 34. The Government further claimed that on 23 November 2005 the Court of Appeal did everything possible to examine the prosecutor’s appeal and to resolve the issue. The same cannot be said of the applicant and her lawyers who did everything possible to hamper the examination of the prosecutor’s appeal. In particular, the lawyer arrived late at the hearing and on several occasions requested a recess which was granted by the court.", "The court was not able to finish the examination of the prosecutor’s appeal and had to adjourn the hearing due to the applicant’s state of health. Thus, the main reasons for the delay in reaching a decision on 23 November 2005 and the eventual adjournment of the hearing were the conduct of the applicant’s lawyers and the deterioration of her health. In such circumstances, the position adopted in the case of Giulia Manzoni v. Italy (1 July 1997, § 25, Reports of Judgments and Decisions 1997‑IV) was also applicable in the present case. 35. The applicant submitted that her detention authorised by a court, which had not been prolonged, was to expire at 5.50 p.m. on 23 November 2005 and the law required that she be released not later than 5.51 p.m. on that day.", "The court received the prosecutor’s appeal in the afternoon of that day and scheduled a hearing for the same day, informing her lawyers about this by telephone at around 5.30 p.m. However, when her detention period expired, the court did not set her free and she was held in the courtroom with the help of national security officers. She was not even allowed to leave the courtroom during the breaks, despite being already formally at liberty. Afterwards, following a consultation with the presiding judge and upon his instructions, four national security officers forcibly transported her back to the detention facility where she was kept until the Court of Appeal decided the next day to prolong her detention. The applicant claimed that her detention following this decision was also unlawful, arguing that if a detention period was over it could no longer be extended.", "36. The applicant further submitted that she had exhausted all available domestic remedies. In particular, given that she was at the Court of Appeal when her detention period expired and the court did not release her from detention in spite of the requirements of Article 11 § 5 of the CCP, she lodged a challenge against the bench. Furthermore, she lodged an appeal on points of law against the Court of Appeal’s decision of 24 November 2005, in which she also raised this complaint. Moreover, the Government’s argument placing all the blame for the failure to release her on the administration of the detention facility was ill-founded, because she was in court when her detention period expired and it was the court’s duty to release her.", "Thus, the applicant’s continued unlawful detention was the joint responsibility of the court, the national security officers and the administration of the detention facility. 2. The Court’s assessment (a) Admissibility 37. The Court notes at the outset that the applicant raised her complaint about the alleged unlawfulness of her detention following the Court of Appeal’s decision of 24 November 2005 for the first time in her observations to the Court submitted on 11 November 2008. It follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "38. As regards the complaint concerning the alleged unlawfulness of the detention period between 5.50 p.m. on 23 November 2005 and the time when the Criminal and Military Court of Appeal decided on 24 November 2005 to prolong her detention, the Court considers that the Government’s claim as to non-exhaustion is closely linked to the substance of this complaint and should therefore be joined to the merits. 39. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. (b) Merits 40. The Court reiterates that any detention must be lawful. The words “in accordance with a procedure prescribed by law” essentially refer to domestic law and lay down an obligation to comply with its substantive and procedural provisions, but also require that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33, and Lukanov v. Bulgaria, 20 March 1997, § 41, Reports of Judgments and Decisions 1997‑II).", "41. The Court further reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim and purpose of that provision (see Quinn v. France, 22 March 1995, § 42, Series A no. 311; Giulia Manzoni, cited above, § 25; K.-F. v. Germany, 27 November 1997, §§ 70, Reports of Judgments and Decisions 1997‑VII; Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000‑IV; and Nikolov v. Bulgaria, no. 38884/97, § 80, 30 January 2003).", "42. The Court has previously accepted that, in certain circumstances, there may be some limited delay before a detained person is released. However, this has been in cases where the period of detention ended as a result of a court order and not conditions laid down by statute. Practical considerations relating to the running of the courts and the completion of administrative formalities mean that the execution of such a court order may take time which, nevertheless, should be kept to a minimum and, in any event, not exceed several hours (see Quinn, cited above, § 42; Giulia Manzoni, cited above, § 25; Labita, cited above, § 171; and Nikolov, cited above, § 82). However, where the maximum detention period and the release are conditioned by law, as opposed to a court order, the authorities are under a duty to take all necessary precautions to ensure that the permitted duration is not exceeded (see K.-F., cited above, §§ 72, in which even a delay of 45 minutes was found to be in breach of Article 5 § 1 (c), since the maximum period of detention was known in advance and was absolute).", "43. Turning to the circumstances of the present case, the Court notes that pursuant to Article 136 § 2 of the CCP detention can be imposed only by a court decision. Pursuant to Article 138 of the CCP a detention period is calculated from the moment that a person is actually taken into custody and cannot exceed two months unless prolonged by a court. The applicant was taken into custody at 5.50 p.m. on 23 September 2005. Thus, her detention period authorised by the decision of the Kentron and Nork-Marash District Court of Yerevan of 26 September 2005 was valid until 5.50 p.m. on 23 November 2005.", "On 22 November 2005 the District Court refused to prolong the applicant’s detention period. However, the applicant was not released from detention at 5.50 p.m. on the next day. Instead, 20 minutes before the expiry of her detention period she was taken to court to take part in the hearing on the appeal lodged by the prosecutor against the decision of 22 November 2005. Moreover, after this hearing was adjourned at around 8.30 p.m., the applicant was taken back to the detention facility despite the fact that Article 141 of the CCP required the administration of the detention facility immediately to release a detainee when his or her detention period authorised by a court had expired. 44.", "The Court observes that the Government admitted that the applicant had indeed been deprived of her liberty between 5.50 p.m. on 23 November 2005 and the time when the Court of Appeal decided on 24 November 2005 to quash the decision of the District Court and to prolong her detention. They claimed, however, that the approach adopted in the Giulia Manzoni case, cited above, was to be applied. The Court does not agree with the Government’s claim. In particular, that and other similar cases concerned a situation in which the court ordered the applicant’s release but some time was necessary for the authorities to complete all the relevant administrative formalities in order to execute that order. In the present case, however, the District Court, by its decision of 22 November 2005, did not order the applicant’s release but simply refused to prolong her detention.", "Thus, the applicant’s authorised detention period continued to run and was to expire on the next day, a fact of which the authorities were aware and with which they were obliged to comply unless in the meantime the District Court’s decision was overturned. In that sense the present case is more similar to the case of K.-F., cited above, than the case pointed out by the Government. However, it must be distinguished even from that case for the following reasons. 45. The Government argued that the delayed examination of the applicant’s case in the Court of Appeal was attributable to the applicant’s lawyers, while after being taken to the detention facility she failed to contest the inaction of its administration.", "The Court, however, is not convinced by these arguments. It reiterates that it is for the Contracting States to organise their legal system in such a way that their law-enforcement authorities can meet the obligation to avoid unjustified deprivation of liberty (see Shukhardin v. Russia, no. 65734/01, § 93, 28 June 2007, and Matyush v. Russia, no. 14850/03, § 73, 9 December 2008). The Court observes that Article 139 of the CCP required that a motion seeking the prolongation of a detention period be submitted to the trial court and examined by it not later than ten and five days respectively before the expiry of the detention period.", "However, both the investigator and the District Court failed to comply with these time-limits, thereby creating undue delays in the examination of the question of prolongation of the applicant’s detention (see paragraphs 8 and 9 above). Furthermore, the applicant was brought before the Court of Appeal only 20 minutes before the expiry of her detention period. The Government, however, failed to come up with any explanation for these delays. In such circumstances, the applicant cannot reasonably be blamed for the failure of the Court of Appeal to finish the examination of the question of prolongation of her detention period before its expiry, especially in view of the fact that the entire hearing before that court lasted much longer than 20 minutes, namely about three hours, and was, moreover, eventually adjourned. 46.", "In any event, even assuming that a short delay at the beginning of the appeal hearing could be attributable to the applicant’s lawyer, this does not affect the fact that the applicant’s authorised detention period expired shortly after the start of such a belatedly scheduled hearing and the law required that she be set free. In spite of this, the Court of Appeal continued to treat the applicant as a detainee. Not only did the court not set her free at 5.50 p.m., when her authorised detention period expired, but even after the hearing was adjourned. Furthermore, the applicant alleged, which the Government did not dispute, that her transfer back to the detention facility was effected in full knowledge of the court and even upon its informal instructions. In such circumstances, it appears that the authorities had no intention of setting the applicant free until the appeal against the District Court’s decision of 22 November 2005 received its final determination.", "No steps were taken to that effect and all the attempts made by the applicant’s lawyers to secure her release were simply ignored. Thus, the present case does not concern a certain delay in complying with the legal rules requiring a detainee’s release, as in the case of K.-F., cited above, but rather the reluctance of the authorities, including the courts, to comply with such rules. 47. In such circumstances, it is doubtful that a separate complaint lodged with the courts against the failure of the administration of the detention facility to release the applicant after she was taken there following the court hearing could have produced any different results and secured the applicant’s release. Furthermore, the Government failed to specify what judicial procedure the applicant had at her disposal that could have provided her with an effective and immediate remedy capable of leading to her release, given the specificities of her case.", "In this respect, it should firstly be noted that the applicant was taken back to the detention facility at a relatively late hour and, in any event, outside regular working hours. Furthermore, the period of her unauthorised stay at the detention facility was relatively short, about seventeen hours. However, Section 18 of the Law on Conditions for Holding Arrested and Detained Persons did not require any immediacy in such matters and even allowed up to one day for detainees’ complaints to be sent to a judge. The Court reiterates that the only remedies to be exhausted are those which are effective and accessible, that is available in theory and in practice at the relevant time, and which are capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success (see Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001, and Melnik v. Ukraine, no.", "72286/01, § 67, 28 March 2006). In view of the above, the Court considers that the Government’s claim as to non-exhaustion must be dismissed. 48. The Court concludes that between 5.50 p.m. on 23 November 2005 and the time when the Court of Appeal decided on 24 November 2005 to prolong her detention the applicant continued to be deprived of her liberty, despite the fact that there was no court decision authorising her detention for that period as required by law. It follows that the applicant’s deprivation of liberty during that period was unlawful.", "49. Accordingly, there has been a violation of Article 5 § 1 (c) of the Convention. B. Article 5 § 4 of the Convention 50. The Court notes that the applicant also invoked Article 5 § 4 of the Convention in connection with the same facts, alleging that her unauthorised detention also gave rise to a violation of that provision.", "51. The Court considers, however, that this complaint results from the main issues arising in the case under Article 5 § 1 (c) of the Convention. Having regard to its findings in respect of Article 5 § 1 (c), it does not consider it necessary to examine separately the admissibility and merits of this complaint. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage as she had suffered distress and frustration as a result of the failure of the domestic authorities to release her from detention. 54. The Government claimed that the applicant had failed to adduce any evidence to support her allegation that she had suffered non-pecuniary damage.", "Even assuming that she had suffered such damage, a finding of a violation would be sufficient just satisfaction. In any event, the amount claimed was excessive. 55. The Court takes the view that the applicant has suffered non-pecuniary damage as a result of her unlawful detention. Ruling on an equitable basis, it awards the applicant EUR 2,000 in respect of non-pecuniary damage.", "B. Costs and expenses 56. The applicant also claimed EUR 6,000 for the costs and expenses incurred before the Court. These included EUR 5,000 for legal costs and EUR 1,000 for translation and administrative costs, such as postal, photocopying and other expenses. As regards legal costs, the applicant submitted that under Armenian law, once a lawyer had taken over the case, he could no longer withdraw.", "She did not pay any money to the lawyer for lodging complaints with the domestic authorities and bringing her case before the Court, but the lawyer performed his work conscientiously. Therefore, no payment proof exists which could be submitted to the Court. 57. The Government submitted that these claims must be rejected since the applicant had not produced any proof that the expenses had been actually incurred. Nor did she substantiate that these alleged costs were necessary and reasonable.", "58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the applicant admitted that she had not paid any money to her lawyer who represented her both before the domestic courts and the Court. Nor was she bound by any contract to make such a payment in the future. As to the alleged translation costs, no documentary proof was submitted substantiating these costs either.", "Therefore, these claims must be dismissed. On the other hand, the Court considers it appropriate to award the applicant EUR 500 for the costs incurred in the proceedings before it. C. Default interest 59. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to join to the merits the Government’s objection as to non-exhaustion and to dismiss it; 2. Declares the applicant’s complaint concerning the unlawfulness of her detention between 5.50 p.m. on 23 November 2005 and the time when the Criminal and Military Court of Appeal decided on 24 November 2005 to prolong her detention admissible under Article 5 § 1 (c) of the Convention; 3. Holds that there has been a violation of Article 5 § 1 (c) of the Convention; 4. Holds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 5 § 4 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Armenian drams at the rate applicable at the date of settlement; (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Armenian drams at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaJosep CasadevallRegistrarPresident" ]

[ "GRAND CHAMBER CASE OF ŞERİFE YİĞİT v. TURKEY (Application no. 3976/05) JUDGMENT STRASBOURG 2 November 2010 This judgment is final but may be subject to editorial revision. In the case of Şerife Yiğit v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President,Christos Rozakis,Nicolas Bratza,Peer Lorenzen,Josep Casadevall,Corneliu Bîrsan,Nina Vajić,Anatoly Kovler,Dean Spielmann,Renate Jaeger,Sverre Erik Jebens,David Thór Björgvinsson,Ján Šikuta,Luis López Guerra,Nona Tsotsoria,Ann Power,Işıl Karakaş, judges,and Vincent Berger, Jurisconsult, Having deliberated in private on 16 December 2009 and on 8 September 2010, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 3976/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ms Şerife Yiğit (“the applicant”), on 6 December 2004.", "2. The applicant, who had been granted legal aid, was represented by Mr M.S. Tanrıkulu and Mr N. Kırık, lawyers practising in Diyarbakır and Hatay respectively. The Turkish Government (“the Government”) were represented by their Agent. 3.", "Relying on Article 8 of the Convention, the applicant alleged that, having lived in a “religious marriage” (imam nikâhı) with her partner, with whom she had six children, she had been unable to claim retirement benefits (survivor's pension) or health insurance (social security) cover on her partner's death in 2002, unlike the children born of the relationship, which was not recognised by the law or the national courts. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 20 January 2009 a Chamber of that Section, composed of the following judges: Françoise Tulkens, Ireneu Cabral Barreto, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, András Sajó and Işıl Karakaş, and also of Sally Dollé, Section Registrar, delivered a judgment in which it held by four votes to three that there had been no violation of Article 8 of the Convention. 5.", "On 14 September 2009, following a request from the applicant dated 7 April 2009, a panel of the Grand Chamber decided to refer the case to the Grand Chamber under Article 43 of the Convention. 6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 7. The applicant and the Government each filed written observations on the merits.", "8. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 December 2009 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrsŞ. Akİpek, Counsel,MrM. Özmen, Co-Agent, MrsA.", "Emüler, MrsM. Aksen,MrT. Taşkin,Advisers; (b) for the applicantMr M.S. Tanrikulu,Mr N. Kirik, Counsel,Mr İ. Sevİnç, Adviser. The Court heard addresses by Mr Kırık, Mr Tanrıkulu, Mrs Akipek and Mr Özmen.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1954 and lives in İslahiye. 10. She was the partner of Ömer Koç (Ö.K.", "), a farmer whom she married in a religious ceremony in 1976 and with whom she had six children. Ö.K. died on 10 September 2002. The applicant stated that on that date, while she and her partner had been making preparations for an official marriage ceremony, Ö.K. had died following an illness.", "A. Proceedings before the District Court 11. On 11 September 2003 the applicant brought proceedings before the İslahiye District Court on her own behalf and on behalf of her daughter Emine seeking rectification of the entry concerning her in the civil status register. She requested that her religious marriage to Ö.K. be recognised and that her daughter be entered in the register as the deceased's daughter.", "12. In a judgment of 26 September 2003 the District Court refused the applicant's request concerning her religious marriage but granted the request for Emine to be entered in the register as Ö.K. 's daughter. As no appeal was lodged, the judgment became final. B.", "Proceedings before the Labour Court 13. On an unspecified date the applicant requested the Hatay retirement pension fund (“Bağ‑Kur”) to award her and her daughter Emine a survivor's pension and health insurance cover on the basis of her late partner's entitlement. The fund refused the request. 14. On 20 February 2003 the applicant applied to the İslahiye Labour Court to have that decision set aside.", "On 20 May 2003 the latter decided that it had no jurisdiction ratione loci and that the case should be heard by the Hatay Labour Court. 15. In a judgment of 21 January 2004 the Hatay Labour Court, in a ruling based on the judgment of the İslahiye District Court, found that the applicant's marriage to Ö.K. had not been validated. Accordingly, since the marriage was not legally recognised, the applicant could not be subrogated to the deceased's rights.", "However, the court set aside the retirement fund's decision in so far as it related to Emine and granted her the right to claim a pension and health insurance cover on the basis of her deceased father's entitlement. 16. On 10 February 2004 the applicant appealed on points of law to the Court of Cassation. She argued that the extract from the civil status register stated that she was the wife of Ö.K., who was registered in the village of Kerküt. She explained that in 1976 she had married Ö.K.", "in accordance with custom and practice. The couple had had six children. The first five children had been entered in the civil status register in 1985 under their father's name, while the last child, Emine, born in 1990, had been entered under her mother's name in 2002. The applicant asserted that, unlike her six children, she had been unable to claim a pension or health insurance cover based on her deceased partner's entitlement. 17.", "In a judgment of 3 June 2004, served on the applicant on 28 June 2004, the Court of Cassation upheld the impugned judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legislation 1. Civil Code 18.", "Article 134 of the Civil Code provides: “A man and a woman who wish to contract a marriage must apply together to the civil status registrar in the place of residence of either one of them. The civil status registrar [who is to perform the ceremony] shall be the mayor in the case of a municipality, or the official whom he or she has designated for the purpose, or the muhtar in the case of a village.” 19. Articles 135 to 144 of the Civil Code lay down the substantive and formal conditions governing the solemnisation of marriage between men and women. 20. Article 143 of the Code reads as follows: “At the close of the [civil] marriage ceremony the official shall issue the couple with a family record book.", "No religious ceremony may be performed without the family record book being produced. The validity of the [civil] marriage is not linked to the performance of a religious ceremony.” 21. Article 176 § 3 of the Civil Code concerning maintenance payments provides that maintenance in the form of an allowance or periodic payments ceases to be due when the recipient remarries or one of the two parties dies, or if the recipient is living in a de facto marital relationship outside marriage, is no longer in financial need or has an immoral lifestyle. 2. Criminal Code 22.", "The sixth paragraph of Article 230 of the Criminal Code reads as follows: “Any person who solemnises a religious marriage without having seen the document certifying that a marriage ceremony was performed in accordance with the law shall be liable to a term of imprisonment of between two and six months.” 3. Code of Obligations 23. Article 43 of the Code of Obligations concerns the determination of compensation awards depending on the circumstances and the seriousness of the fault. Article 44 of the Code deals with reductions in compensation awards. Article 45 concerns awards for damages following a death: persons deprived of financial support as the result of a death must receive compensation for loss of income.", "4. Social Security Act 24. Section 23(b) and (c) of the Social Security Act (Law no. 506) lists the persons eligible for a survivor's pension on the death of a spouse (where a civil marriage has taken place). 25.", "Sections 32 to 34 of the General Health and Social Security Act (Law no. 5510) set out the circumstances in which the persons entitled under the deceased (where there was a civil marriage) may claim a survivor's pension, and the method used to calculate the amount. 5. Law no. 5251 of 27 October 2004 on the organisation and functions of the Directorate-General for the Status of Women 26.", "The aim of this Law is to safeguard women's social, economic, cultural and political rights and to combat all forms of discrimination against women and improve their level of educational attainment. 6. Law no. 3716 of 8 May 1991 on the correct recording of the parentage of children born within or outside marriage and those born of a relationship not based on a marriage certificate 27. As its title indicates, this Law (repealed on 16 May 1996) dealt with the recording in the civil status register under the father or mother's name of children born within or outside civil marriage and with the regularisation of the situation of children whose parents had not contracted a civil marriage.", "The new Civil Code, which entered into force on 8 December 2001, no longer distinguishes between children born within and outside marriage. B. Case-law 1. Court of Cassation 28. In a judgment of 28 May 2007 (E. 2007/289, K. 2007/8718), the Twenty-First Division of the Court of Cassation quashed a first-instance judgment on the ground that a woman married in accordance with religious rites should be paid compensation under Articles 43 and 44 of the Code of Obligations following the death of her partner in a work-related accident. 29.", "In a judgment of 11 September 1990 (E. 1990/4010, K. 1990/6972), the Tenth Division of the Court of Cassation set aside a first-instance judgment awarding compensation to a woman living in a religious marriage following the death of her partner in a work-related accident. After reiterating that marriage was a legal institution, that a religious union between two persons of opposite sex could not be recognised as a marriage and that section 23(c) and (b) of the Social Security Act (Law no. 506) guaranteed compensation only to the children born of a marriage or a union other than marriage, the Court of Cassation ruled that the children were entitled to social security cover following the death of their father, but that the father's partner was not. The court held that in the absence of legislation on the subject, the social security agency could require the woman in question to repay the sums wrongly paid to her after her partner's death. 30.", "By a judgment of 11 December 2003 (E. 2003/14484, K. 2003/14212), on the basis of Article 176 § 3 of the Civil Code, the Third Division of the Court of Cassation set aside a judgment of the lower court on the ground that a former husband was no longer required to pay maintenance to his ex-wife since the latter was living in a de facto marital relationship with another man, albeit without a marriage certificate, and the couple had a child together. 31. In a judgment of 6 June 2000 (E. 2000/3127, K. 2000/4891) the Fourth Division of the Court of Cassation overturned a criminal court ruling acquitting an imam who had performed a religious marriage ceremony without first checking the document proving that a civil marriage had taken place in accordance with the law. 2. Supreme Administrative Court 32.", "In a judgment of 17 October 1997 (E. 1995/79, K. 1997/479) the General Assembly of the plenary Supreme Administrative Court (Danıştay Dava Daireleri Genel Kurulu) upheld a first-instance judgment, thereby overturning the judgment of the Tenth Division of the Supreme Administrative Court, on the ground that the children and surviving partner from a religious marriage should be awarded compensation after their father and partner was accidentally killed (by police bullets fired on the fringes of a demonstration). The General Assembly observed that the action had been brought by the surviving partner on her own behalf and that of her children, that four children had been born of the relationship, resulting from a religious marriage, and that following the man's death, the children and their mother had been deprived of his financial support (destekten yoksun kalma tazminatı). It pointed out that, while domestic law did not afford protection to or validate such a union, the couple had had children together whose births had been recorded under the parents' names in the civil status register and the deceased had supported the family financially. Accordingly, it awarded compensation to the children and their mother on account of the man's death. 3.", "Observations on the domestic law and case-law 33. As cohabitation on the basis of religious marriage is a social reality, the courts apply two principles of civil liability in awarding compensation to women whose partner in a religious marriage has died: (a) compensation for pecuniary and non-pecuniary damage (maddi ve manevi tazminat) on the basis of Articles 43 and 44 of the Code of Obligations; (b) compensation for loss of financial support (destekten yoksun kalma tazminatı) following a death, on the basis of Article 45 of the Code of Obligations. 34. In the specific context of Article 176 § 3 of the Civil Code, the legislation refers to couples living together as de facto man and wife without having contracted a civil marriage. In practice, this means religious marriage, and there is no requirement to continue paying maintenance to the other party in the situations contemplated (see paragraph 21 above).", "However, the Court of Cassation does not award the two types of compensation referred to in the previous paragraph in the case of same-sex or adulterous relationships, which are deemed to run counter to morals (see, for example, the judgment of the Twenty-First Division of the Court of Cassation of 11 October 2001 (E. 2001/6819, K. 2001/6640)). 35. The legislature does not recognise any form of opposite-sex or same‑sex cohabitation or union other than civil marriage. The domestic courts interpret the law very strictly. The fact that the general principles articulated in the Civil Code and the Code of Obligations are applied cannot be viewed as tacit or de facto recognition of religious marriage.", "Although the domestic courts award surviving partners compensation on the basis of general principles of civil liability – which cannot be equated with the principles governing social security or civil marriage – they never grant them survivor's pensions or social security benefits based on the deceased partner's entitlement. C. Background to the case 1. History 36. Under Islamic law, a religious marriage requires the presence of two male witnesses (or one man and two women). The marriage is solemnised simply by the couple exchanging vows in the presence of the witnesses, without the need for a cleric (imam or equivalent) to be present or for an official document to be drawn up.", "Under the Ottoman empire, following a decision taken by the supreme Sunni religious authority, the Sheikh-ul-Islam, the presence of an imam or a kadı (judge) became compulsory for all marriage ceremonies, on pain of penalties. This practice became widely established, and nowadays the presence of an imam is required. Muslim marriages also include a pecuniary element in the form of a dowry (mahr). 37. Islamic law, save in some specific circumstances (for instance, the death of the husband), recognises repudiation (talâk) as the sole means of dissolving a marriage.", "This is a unilateral act on the part of the husband, who dismisses his wife and thereby severs the marital bond. It entails the husband explicitly repudiating his wife by saying the required form of words three times to her (for example: “I repudiate you” or “You are repudiated”). 2. The Republic 38. The Turkish Republic was founded on a secular basis.", "Before and after the proclamation of the Republic on 29 October 1923, the public and religious spheres were separated through a series of revolutionary reforms: the abolition of the caliphate on 3 March 1923; the repeal of the constitutional provision declaring Islam the religion of the State on 10 April 1928; and, lastly, on 5 February 1937, an amendment to the Constitution according constitutional status to the principle of secularism (see Article 2 of the 1924 Constitution and Article 2 of the Constitutions of 1961 and 1982). The principle of secularism was inspired by developments in Ottoman society in the period between the nineteenth century and the proclamation of the Republic (see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 30-32, ECHR 2005‑XI). 39. One of the major achievements of the Civil Code was the institution of compulsory monogamous civil marriage between men and women, requiring religious marriages to be preceded by a civil ceremony.", "The new Civil Code, which entered into force on 8 December 2001, does not cover any forms of cohabitation other than marriage. The national parliament chose not to enact legislation in this sphere. 3. The Religious Affairs Directorate 40. According to the Religious Affairs Directorate (Diyanet İşleri Başkanlığı), imams, who are appointed by the Directorate, are expressly required to verify that the future husband and wife have been married by a civil status registrar.", "The “religious” ceremony before an imam appointed by the Directorate is a mere formality which entails little solemnity. The civil marriage takes precedence over the religious marriage. III. COMPARATIVE LAW 41. Of the thirty-six countries surveyed in a comparative-law study, fourteen (Cyprus, the Czech Republic, Denmark, Finland, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Spain and the United Kingdom) recognise varying forms of religious marriage.", "Exclusively religious marriages are not recognised and are treated on the same footing as cohabitation in the following countries: Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, France, Georgia, Germany, Hungary, Luxembourg, Moldova, Monaco, the Netherlands, Romania, Serbia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine. 42. Of the thirty-six countries surveyed, four (France, Greece, Portugal and Serbia) expressly recognise cohabitation. In other countries, although such arrangements are not expressly recognised, they produce legal effects to one degree or another. This is the case in Austria, Belgium, the Czech Republic, Denmark, Hungary, Italy, the Netherlands, Slovenia and Switzerland.", "However, the majority of States do not recognise cohabitation at all (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Finland, Georgia, Germany, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, Monaco, Poland, Romania, “the former Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom). 43. In twenty-four countries (Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, France, Germany, Greece, Hungary, Ireland, Luxembourg, Moldova, Monaco, the Netherlands, Poland, Romania, Serbia, Slovenia, Spain, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine), the national legislation allows the surviving spouse, subject to certain conditions, to claim benefits based on the deceased's social security entitlements. Of these countries, only six (Austria, Belgium, France, Hungary, the Netherlands and Spain) extend this right to cohabitants. In most of the member States of the Council of Europe, only married couples who have contracted a civil marriage qualify for health insurance cover on the death of one of the partners; hence, cohabitants are not eligible.", "44. In Denmark, Hungary, the Netherlands, Portugal, Slovenia and Spain a survivor's pension may be awarded to a surviving cohabitant in certain circumstances. In the vast majority of countries which have a survivor's pension, cohabitants are not eligible to receive it. THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION A.", "The Chamber judgment 45. Before the Chamber, the Government raised an objection of failure to exhaust domestic remedies. They pointed out that the applicant had brought proceedings before the İslahiye District Court seeking recognition of her religious marriage to her deceased partner. The action had been dismissed by the court and the applicant had not appealed against that decision to the Court of Cassation. 46.", "In its judgment, the Chamber dismissed the Government's preliminary objection, reasoning as follows: “19. The Court observes that the applicant complained that her application concerning her deceased partner's retirement pension and health insurance rights had been rejected by the Hatay Labour Court on 21 January 2004. That judgment was upheld by the Court of Cassation judgment of 3 June 2004, served on the applicant on 28 June 2004. The applicant lodged her application with the Court on 6 December 2004, that is to say, within the six-month time-limit laid down by Article 35 § 1 of the Convention. Accordingly, the Government's objection must be dismissed.” B.", "The parties' submissions 47. The Government reiterated the same preliminary objection before the Grand Chamber. 48. The applicant maintained that she had exhausted domestic remedies, pointing out that she had applied unsuccessfully to the domestic courts for a survivor's pension and social security benefits based on her partner's entitlement. C. The Court's assessment 49.", "The Court observes that after the death of her partner the applicant first lodged an action with the İslahiye District Court seeking rectification of the entry concerning her in the civil status register, with a view to having her religious marriage recognised and having her daughter registered as her partner's daughter. She subsequently lodged another action, this time with the Hatay Labour Court, seeking to obtain a survivor's pension and social security benefits based on her late partner's entitlement. Hence, by complaining in substance of her inability to obtain those benefits the applicant made use, without success, of an appropriate and available remedy before the Hatay Labour Court, whose judgment was upheld by the Court of Cassation. 50. Accordingly, the Grand Chamber agrees with the Chamber's conclusion.", "It reiterates in that regard that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, ECHR 2009‑..., and Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009‑...). It follows that the Government's objection as to non-exhaustion of domestic remedies must be dismissed. II.", "THE NATURE OF THE APPLICANT'S COMPLAINT 51. The Grand Chamber observes that the Chamber examined the applicant's complaint from the standpoint of Article 8 of the Convention only. However, it should be reiterated that the scope of the Grand Chamber's jurisdiction in cases submitted to it is limited only by the Chamber's decision on admissibility (see Perna v. Italy [GC], no. 48898/99, § 23, ECHR 2003‑V, and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004‑III).", "Within the compass thus delimited, the Grand Chamber may deal with any issue of fact or law that arises during the proceedings before it (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172; Philis v. Greece (no. 1), 27 August 1991, § 56, Series A no. 209; Guerra and Others v. Italy, 19 February 1998, § 44 in fine, Reports of Judgments and Decisions 1998‑I; and Scoppola v. Italy (no. 2) [GC], no.", "10249/03, § 48, ECHR 2009‑...). 52. Furthermore, since the Court is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the Court had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Scoppola, cited above, § 54; Powell and Rayner, cited above, § 29; and Guerra and Others, cited above, § 44).", "By virtue of Article 43 of the Convention, it is the whole case, embracing all aspects of the application previously examined by the Chamber, which is referred to the Grand Chamber to be decided afresh by means of a new judgment (see, among other authorities, Göç v. Turkey [GC], no. 36590/97, § 36, ECHR 2002‑V). The Grand Chamber may proceed in the same manner in the present case. 53. For that reason the Grand Chamber invited the parties, in their observations and pleadings before it, to also address the issue of compliance in the instant case with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.", "1. In the light of their submissions, it considers it necessary to first examine the applicant's complaint from the standpoint of those provisions. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 54.", "In connection with the invitation referred to in the preceding paragraph the applicant submitted that the refusal of the domestic courts to award her a survivor's pension and social security benefits based on her deceased partner's entitlement had been in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions... 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. Applicability of Article 14 taken in conjunction with Article 1 of Protocol No.", "1 55. Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. Its application does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000‑IV, and Koua Poirrez v. France, no.", "40892/98, § 36, ECHR 2003‑X; see also Fretté v. France, no. 36515/97, § 31, ECHR 2002‑I and the case-law cited therein). 56. As regards the applicability of Article 1 of Protocol No. 1, the Court ruled in Stec and Others v. the United Kingdom ((dec.) [GC], nos.", "65731/01 and 65900/01, §§ 42-56, ECHR 2005‑X) that this provision did not oblige States to put in place a social security or pension scheme; however, if a Contracting State had in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements. 57. In the instant case the applicant complained that she had been deprived of a survivor's pension and social security benefits based on her deceased partner's entitlement on discriminatory grounds covered, in her view, by Article 14, namely her status as a woman married in accordance with religious rites. 58.", "The Court notes that, under the national social security legislation, only persons married in accordance with the Civil Code inherit their late spouse's social security entitlements. It further observes that, according to the settled case-law of the domestic courts, based on the ordinary law on civil liability as defined in the relevant provisions of the Civil Code and the Code of Obligations, a retirement pension and social security benefits cannot be awarded to a surviving partner where there has been no civil marriage. However, the Court points to its own case-law to the effect that, although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others, cited above, § 55). In the instant case the applicant complained that she had not been awarded a retirement pension and social security benefits based on her late partner's entitlement on discriminatory grounds for the purposes of Article 14 of the Convention.", "59. Consequently, Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 is applicable in the present case. B. Compliance with Article 14 taken in conjunction with Article 1 of Protocol No.", "1 1. The parties' submissions (a) The Government 60. The Government began by pointing out that the regulation of marriage, which was compatible with Article 12 of the Convention, fell within the State's margin of appreciation. Civil marriage was clearly defined by the provisions of the Civil Code. Only persons who had contracted a civil marriage could enjoy the corresponding rights.", "That was why the applicant's application to the Hatay Labour Court seeking to benefit from her deceased partner's social security entitlements had been rejected on account of the absence of a civil marriage. Entitlement to a survivor's pension and social security benefits was not governed by the rules on inheritance laid down by the Civil Code. Under the domestic social security legislation, the lawful surviving partner of a civil marriage and his or her children could inherit such entitlement. 61. Next, the Government stressed the importance of the principle of secularism, which was enshrined in the Constitution.", "It was not possible to attach legal consequences to the application of religious rules. The legislature's aim was to prevent religious marriages and protect the most important building-block of society, namely the family. As a secular State, Turkey did not recognise religious marriages. In a similar situation where the woman rather than the man was in employment, the latter would not be awarded a survivor's pension or social security benefits on her death. Religious marriage placed women at a disadvantage compared to men.", "In order to prevent discrimination and grant the same rights to women and men, the law required religious marriages to be preceded by a civil ceremony. The law governing civil marriage did not impose any particular restrictions on the right to marry, neither could the legislature oblige persons who were living together to marry in accordance with the Civil Code. 62. In the Government's submission, the domestic authorities had not subjected the applicant to discriminatory treatment compared to other persons in a similar situation. There was no provision of domestic law which entitled a “surviving life companion” or “surviving partner” to receive a survivor's pension or social security benefits as the deceased's successor.", "The main difference between religious and civil marriage was that the former was not recognised by the law. Religious marriages were not registered. Persons wishing to enter into such a union were free to do so, but only after they had contracted a civil marriage. Article 230 of the Criminal Code made it a punishable offence to solemnise a religious marriage before the civil ceremony. The object of that provision was to protect women against polygamy.", "If religious marriages were to be considered lawful all the attendant religious consequences would have to be recognised, for instance the fact that a man could marry four women. The only means of preventing that was to promote civil marriage and not to attach rights to religious marriage. A further legal argument militated against religious marriage, namely the principle of presumption of paternity, which was based on the existence of a civil marriage. Furthermore, the recognition of a child by his or her father did not entail regularisation of the latter's religious marriage. The applicant had had the opportunity to contract a civil marriage in order to secure entitlement to a survivor's pension and social security benefits in the event of her partner's death.", "63. Lastly, the Government submitted that a distinction needed to be made between a claim for damages under private law and an application for a survivor's pension and other social security benefits under the rules of public law. Under the latter, entitlement to such benefits required the existence of a legal relationship. As religious marriage was not recognised the applicant could not legally claim a survivor's pension or social security benefits based on her late partner's entitlement. Granting such rights to persons living in religious marriages would be tantamount to encouraging religious marriage.", "Under domestic law, the introduction of a claim for damages did not depend on the persons concerned being related. Admittedly, the courts accepted that a fiancée or close friend who had cared for the deceased or a person who had suffered a loss of income as a result of the death could be awarded damages; however, in such situations Turkish law provided for compensation irrespective of the existence of a religious or civil marriage. (b) The applicant 64. During the hearing, without making an explicit complaint in that regard, the applicant stated that, as she herself had been born of a religious marriage, her name had not been entered in the civil status register until 15 October 2002. The delay in being registered was the reason why she had been unable to contract a civil marriage with Ö.K.", "As a woman married in accordance with custom and practice, she submitted that the domestic courts had rejected her claim for social security benefits on the death of her partner because she had not contracted a civil marriage. 65. The applicant did not regard her application as tending towards the recognition of religious marriage or polygamy. The Civil Code recognised religious marriages provided that they were solemnised after a civil ceremony had been performed. While she was aware of the relevant provision of the Criminal Code, she had doubts as to its effectiveness (see paragraph 22 above).", "In her view, religious marriage was a social reality throughout Turkey. Furthermore, her situation could have been regularised on the basis of the amnesty laws which were enacted regularly with a view to ensuring that children born outside marriage could be entered in the civil status register. 66. During the hearing the applicant stated that she had always paid her own medical expenses rather than being covered by her partner, as she had never had entitlement through him. 2.", "The Court's assessment (a) Relevant general principles 67. According to the Court's settled case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007‑XII). A difference in treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999‑I).", "The provisions of the Convention do not prevent, in principle, Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the difference in treatment which results for the statutory category or group as a whole can be justified under the Convention and its Protocols (see, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, § 112, ECHR 2006‑IV). 68. In other words, Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see Ünal Tekeli v. Turkey, no. 29865/96, § 51, ECHR 2004‑X).", "69. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos, cited above, § 44). 70. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see Marckx v. Belgium, 13 June 1979, § 33, Series A no. 31; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 72, Series A no.", "94; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 72, Reports 1996‑IV). That margin is wider when it comes to the adoption by the State of general fiscal, economic or social measures, which are closely linked to the State's financial resources (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008‑..., and Petrov v. Bulgaria, no. 15197/02, § 55, 22 May 2008). However, it is ultimately for the Court to decide, in the light of the circumstances of the case in question, whether such measures are compatible with the State's obligations under the Convention and its Protocols (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no.", "98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997‑VII). 71. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others, cited above, § 177; Timishev v. Russia, nos. 55762/00 and 55974/00, § 57, ECHR 2005‑XII; and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999‑III).", "72. With regard to Article 12 of the Convention, the Court has already ruled that marriage is widely accepted as conferring a particular status and particular rights on those who enter it (see Burden, cited above, § 63, and Shackell v. the United Kingdom (dec.), no. 45851/99, 27 April 2000). The protection of marriage constitutes, in principle, an important and legitimate reason which may justify a difference in treatment between married and unmarried couples (see Quintana Zapata v. Spain, Commission decision of 4 March 1998, Decisions and Reports (DR) 92, p. 139). Marriage is characterised by a corpus of rights and obligations that differentiate it markedly from the situation of a man and woman who cohabit (see Nylund v. Finland (dec.), no.", "27110/95, ECHR 1999‑VI, and Lindsay v. the United Kingdom (dec.), no. 11089/84, 11 November 1986). Thus, States have a certain margin of appreciation to treat differently married and unmarried couples, particularly in matters falling within the realm of social and fiscal policy such as taxation, pensions and social security (see, mutatis mutandis, Burden, cited above, § 65). (b) Application of the above principles to the present case (i) Whether the civil or religious nature of a marriage can be a source of discrimination prohibited by Article 14 73. It is not disputed in the instant case that the applicant, although not lawfully married, lived in a monogamous relationship with her partner for twenty-six years until his death, and that she had six children with him.", "According to the judgment of the Hatay Labour Court (see paragraph 15 above), the applicant's claim for a survivor's pension and social security benefits based on her late partner's entitlement was rejected because she had not contracted a civil marriage. The fact that the applicant, who was born of a religious marriage, had not been registered at birth does nothing to alter this. 74. The applicant considered herself to be in a situation comparable to that of a widow in a civil marriage. She fulfilled all the legal requirements for claiming the benefits in question apart from the fact that her marriage had been religious rather than civil in nature.", "75. While contending that the national courts had not subjected the applicant to discriminatory treatment in relation to other persons in a similar situation, the Government took the view in particular that her situation, as a person married according to religious rites, could not be likened to that of a wife married in accordance with the Civil Code. The refusal of the domestic courts to award the benefits in issue to the applicant had been based on the law, the justification for which was twofold: the protection of women, particularly through efforts to combat polygamy, and the principle of secularism. 76. Accordingly, the Court must now examine whether the nature of a marriage – that is, whether it is civil or religious – can be a source of discrimination prohibited by Article 14.", "77. In that regard the Court points out that Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (“status”) by which persons or groups of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23). The characteristics in question are enumerated in Article 14. 78.", "However, the list set out in that provision is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “notamment”) (see Engel and Others v. the Netherlands, 8 June 1976, § 72, Series A no. 22; James and Others, cited above, § 74; and Luczak v. Poland, no. 77782/01, § 46, ECHR 2007‑XIII). Furthermore, discrimination prohibited by Article 14 may also be on the ground of “other status” (“toute autre situation” in French). As the nature of a marriage – that is, whether it is civil or religious – does not feature as such in the list of possible grounds of discrimination contemplated by Article 14, the Court must examine whether it might come under the heading of “other status”.", "79. In that regard the Court has ruled in previous cases that children born outside marriage were discriminated against compared to those born within a civil marriage, as the difference in treatment was based solely on the former's “status” as children born out of wedlock (see, among many other authorities, Marckx, cited above; Mazurek v. France, no. 34406/97, ECHR 2000‑II; and Inze v. Austria, 28 October 1987, Series A no. 126). The Court has adopted similar reasoning in finding that a refusal to grant access rights in respect of a child on the sole ground that the child was born out of wedlock was discriminatory (see, for example, Sahin v. Germany [GC], no.", "30943/96, § 87, ECHR 2003‑VIII). Likewise, the Court considers that the absence of a marriage tie between two parents is one of the aspects of personal “status” which may be a source of discrimination prohibited by Article 14. 80. These considerations apply, mutatis mutandis, to the instant case, given that it has not been disputed that the difference in treatment to which the applicant was subjected with regard to the benefits in question was based solely on the non-civil nature of her marriage to her partner. (ii) Whether there was an objective and reasonable justification for the difference in treatment (α) Legitimate aim 81.", "The Court must now ascertain whether the difference in treatment in question pursued a legitimate aim. In that connection, taking into account the importance of the principle of secularism in Turkey, the Court notes that in adopting the Civil Code in 1926, which instituted monogamous civil marriage as a prerequisite for any religious marriage, Turkey aimed to put an end to a marriage tradition which places women at a clear disadvantage, not to say in a situation of dependence and inferiority, compared to men. For the same reason it introduced the principle of gender equality in the enjoyment of civic rights, particularly in relation to divorce and inheritance, and prohibited polygamy. Marriage in accordance with the Civil Code is specifically aimed at protecting women, for instance by laying down a minimum age for marriage and establishing a set of rights and obligations for women (in particular in the event of the dissolution of the marriage or the death of the husband). 82.", "In the light of the foregoing, the Court accepts that the difference in treatment in question primarily pursued the legitimate aims of protecting public order and protecting the rights and freedoms of others. (β) Reasonable relationship of proportionality between the means employed and the aim sought to be realised 83. As to whether there was a reasonable relationship of proportionality, it should be noted that the fact that the applicant had not contracted a civil marriage and had not regularised her situation had adverse legal consequences for her. Hence, she did not have the status of heir which would have entitled her to claim a survivor's pension and social security benefits on her partner's death. At the hearing the applicant pointed out that she had paid her own medical expenses while her partner was alive and that the latter had paid contributions into the “Bağ-Kur” retirement pension fund.", "84. The Court notes, however, that the applicant was aware of her situation and knew that she needed to regularise her relationship in accordance with the Civil Code in order to be entitled to benefits on her partner's death. The Civil Code requires a binding legal document to be issued in order for a civil marriage to be valid and to produce effects vis‑à‑vis third parties and the State. Thus, at the close of the official marriage ceremony, a family record book is handed over to the married couple. The Civil Code states clearly that no religious marriage may be solemnised in the absence of the family record book (see paragraph 20 above).", "In order to ensure that the pre‑eminence of civil marriage is observed the respondent State also provides for criminal sanctions against any person who solemnises a religious marriage without first ascertaining that a civil ceremony has taken place (see paragraph 22 above). For its part, the Religious Affairs Directorate – the authority recognised by the legislature in this sphere – expressly requires its imams to verify that the couple intending to marry have already contracted a civil marriage before a civil status registrar. 85. The present case is therefore clearly distinguishable from that of Muñoz Díaz v. Spain (no. 49151/07, 8 December 2009), in which the Court observed that the Spanish authorities had recognised the applicant – a member of the Roma community who had married in accordance with Roma rites – as her partner's “spouse”.", "The woman in question and her family had been issued with a family record book and been granted large‑family status; the mother, as a spouse, and her six children had also been in receipt of health-care assistance. The Court therefore took the view that the applicant's good faith as to the validity of her marriage, confirmed by the authorities' official recognition of her situation, had given her a legitimate expectation of being entitled to a survivor's pension. Finally, when the applicant had got married according to Roma rites and traditions, it had not been possible in Spain, except by making a prior declaration of apostasy or of affiliation to a different faith, to be married otherwise than in accordance with the rites of the Catholic Church. 86. Unlike the situation in Muñoz Díaz, the applicant in the present case could not argue that she had a legitimate expectation of obtaining a survivor's pension and social security benefits on the basis of her partner's entitlement (see paragraph 58 above).", "Furthermore, the rules laying down the substantive and formal conditions governing civil marriage are clear and accessible and the arrangements for contracting a civil marriage are straightforward and do not place an excessive burden on the persons concerned (see paragraph 18 above). The applicant has never maintained otherwise. What is more, she had a sufficiently long time – twenty-six years – in which to contract a civil marriage. There is therefore no justification for her assertion that the efforts she allegedly undertook to regularise her situation had been hampered by the cumbersome nature or slowness of the administrative procedures. As to whether the civil status registrar could or should have regularised her situation of his or her own accord on the basis of the amnesty laws enacted in relation to children born outside marriage (see paragraph 27 above), the Court notes that, while the State may regulate civil marriage in accordance with Article 12 of the Convention, this does not mean that it can require persons within its jurisdiction to contract a civil marriage.", "The Court further notes, as did the Government, that the amnesty laws in question are not aimed at regularising religious marriages but at improving the situation of children born out of relationships which are not legally recognised, or outside the bonds of marriage. 87. In the light of these considerations, the Court concludes that there was a reasonable relationship of proportionality between the impugned difference in treatment and the legitimate aim pursued. There was therefore an objective and reasonable justification for the difference in question. 88.", "There has accordingly been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 89. On the basis of the same complaint as the one under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.", "1, the applicant further alleged a breach of her right to respect for her family life within the meaning of Article 8 of the Convention, the relevant parts of which provide: “1. Everyone has the right to respect for his ... family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The Chamber judgment 90. The Chamber noted the existence in the present case of “family life” within the meaning of Article 8 (see paragraph 27 of the Chamber judgment).", "It held that there had been no violation of that provision because the difference complained of had pursued a legitimate aim and been based on objective and reasonable grounds, namely the protection of the traditional family based on the bonds of marriage (see paragraph 30 of the judgment). B. The parties' submissions 91. The Government agreed with the Chamber's conclusion, taking the view that Article 8 did not impose an obligation on the Contracting States to adopt a special regime for couples living together without having contracted a civil marriage. 92.", "The applicant reiterated her allegations. C. The Court's assessment 1. Whether there was “family life” 93. By guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family. The existence or non-existence of “family life” is essentially a question of fact depending upon the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no.", "25702/94, § 150, ECHR 2001‑VII). 94. Article 8 applies to the “family life” of the “illegitimate” family as it does to that of the “legitimate” family (see Marckx, cited above, § 31, and Johnston and Others v. Ireland, 18 December 1986, § 55, Series A no. 112). The notion of the “family” is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside of marriage (see Keegan v. Ireland, 26 May 1994, § 44, Series A no.", "290, and Al-Nashif v. Bulgaria, no. 50963/99, § 112, 20 June 2002). A child born out of such a relationship is ipso jure part of that “family” unit from the moment and by the very fact of his birth. Thus there exists between the child and his parents a bond amounting to family life (see Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000‑VIII).", "95. Furthermore, questions of inheritance and voluntary dispositions between near relatives appear to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children's education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate. Whilst inheritance rights are not normally exercised until the estate-owner's death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance; it therefore represents a feature of family life that cannot be disregarded (see Marckx, cited above, § 52, and Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004).", "96. In addition, when deciding whether a relationship can be said to amount to “family life”, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have children together (see X, Y and Z v. the United Kingdom, 22 April 1997, § 36, Reports 1997‑II, and Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297‑C). 97. In its judgment in the present case, the Chamber held that Article 8 of the Convention was applicable, for the following reasons: “27.", "In the instant case the Court observes that the applicant entered into a religious marriage (imam nikâhı) in 1976 with Ö.K. The couple had six children, the first five of whom were entered in the civil register under the father's name, while the last child was entered under the applicant's name. It is not contested by the parties that the applicant and her children lived with Ö.K. until his death in 2002. The Court considers that it does not have jurisdiction to rule on the place or role of religious marriage in Turkish law and its social consequences.", "It simply notes that the applicant, Ö.K. and their children lived together in such a way that they constituted a 'family' within the meaning of Article 8 of the Convention.” 98. The Grand Chamber fully agrees with this finding. 2. The applicant's right to respect for her “family life” 99.", "The Court must therefore determine whether, in the particular circumstances of the present case, the choice by the State to confer a particular status on civil marriage as distinct from religious marriage resulted in interference with the applicant's “family life” within the meaning of Article 8 of the Convention. It will do so in the light of the reasoning it adopted in relation to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraphs 81 to 88 above). 100. It should be reiterated in this regard that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities.", "There may in addition be positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299‑A). Furthermore, in the sphere of the State's planned economic, fiscal or social policy, on which opinions within a democratic society may reasonably differ widely, that margin is necessarily wider (see, mutatis mutandis, James and Others, cited above, § 46). This applies also in the present case (see paragraph 82 above).", "101. As to the applicant, she chose, together with her partner, to live in a religious marriage and found a family. She and Ö.K. were able to live peacefully as a family, free from any interference with their family life by the domestic authorities. Thus, the fact that they opted for the religious form of marriage and did not contract a civil marriage did not entail any penalties – either administrative or criminal – such as to prevent the applicant from leading an effective family life for the purposes of Article 8.", "The Court therefore finds no appearance of interference by the State with the applicant's family life. 102. Accordingly, the Court is of the view that Article 8 cannot be interpreted as imposing an obligation on the State to recognise religious marriage. In that regard it is important to point out, as the Chamber did (see paragraph 29 of its judgment), that Article 8 does not require the State to establish a special regime for a particular category of unmarried couples (see Johnston and Others, cited above, § 68). For that reason the fact that the applicant does not have the status of heir, in accordance with the provisions of the Civil Code governing inheritance and with the domestic social security legislation, does not imply that there has been a breach of her rights under Article 8.", "103. In conclusion, there has been no violation of Article 8 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objection; 2. Holds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.", "1; 3. Holds that there has been no violation of Article 8 of the Convention. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 2 November 2010. Vincent BergerJean-Paul CostaJurisconsultPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Rozakis and Kovler are annexed to this judgment. J.-P.C.V.B.", "CONCURRING OPINION OF JUDGE ROZAKIS Together with the majority of the Grand Chamber, I voted in this case in favour of non-violation on both counts (Article 14 taken in conjunction with Article 1 of Protocol No. 1, and Article 8 of the Convention). However, I would like to express, through this concurring opinion, certain points of disagreement regarding the reasoning that the majority followed in reaching the conclusion that there had been no violation. In dealing with the question of alleged discrimination under Article 14 taken in conjunction with Article 1 of Protocol No. 1, the Court was apparently influenced by the applicant's argument that the issue to be examined in the circumstances of the case was that she had been denied a survivor's pension and social security benefits because of her status as a woman married in accordance with religious rites, and that the authorities' conduct in that regard had discriminated against her since the Turkish State recognised civil marriage as the sole basis for legal entitlement to social security benefits.", "On the basis of this approach the Turkish Government maintained, in response to her arguments, that the difference in treatment between couples married only in accordance with religious rites and couples married in accordance with the requirements of domestic civil law was justified given the importance of the principle of secularism, and pursued the legislature's aim of “de-legitimising” religious marriage which, inter alia, placed women at a disadvantage compared to men and allowed polygamy. As a consequence, the line followed by the Court in its judgment was that the elements to be compared (the comparators) in the exercise of establishing whether in the circumstances there had been discrimination in breach of Article 14 of the Convention were religious marriage on the one hand and civil marriage on the other. This was the core distinction which led the Court to find that the difference in treatment had a legal basis and a legitimate aim and was proportionate to the aim pursued. And this is where I differ in my consideration of the case. I believe that the issue in this case, in Convention terms, is not religious marriage and its differences vis-à-vis civil marriage.", "Religious marriage is the backdrop, la toile de fond, which allowed the couple made up of the deceased man and his partner, the applicant, to live together monogamously for twenty-six years and have six children. The real comparators to be taken into account in our assessment should have been a long-standing and stable family relationship outside marriage on the one hand, and marriage, as understood by the domestic legal system, on the other. In other words, the elements to be compared are long-standing cohabitation and marriage, rather than religious marriage and civil marriage. If these two elements are the comparators, then we should examine whether the distinction which the Turkish State makes between persons married only in a religious ceremony (who are to be considered, under Turkish law, as “unmarried”), and couples married in a civil ceremony, justifies the different treatment afforded by the State's legislation to the latter. And here I accept that the Convention case-law confers a particular status and particular rights on those who enter into a marital relationship.", "As it was correctly stated in paragraph 72 of the judgment, “[t]he protection of marriage constitutes, in principle, an important and legitimate reason which may justify a difference in treatment between married and unmarried couples. ... Marriage is characterised by a corpus of rights and obligations that differentiate it markedly from the situation of a man and a woman who cohabit. ... Thus, States have a certain margin of appreciation to treat differently married and unmarried couples, particularly in matters falling within the realm of social and fiscal policy such as taxation, pensions and social security.” For the above reasons, and considering that the comparators in the present case are stable cohabitation outside marriage and marriage itself, I accept that compliance with the Convention case-law must lead us to the conclusion that in the circumstances of the case the absence of social security benefits to the detriment of our applicant's interests is not contrary either to Article 14 (read in conjunction with Article 1 of Protocol No.", "1) or to Article 8 of the Convention. Nevertheless, in view of the new social realities which are gradually emerging in today's Europe, manifested in a gradual increase in the number of stable relationships outside marriage, which are replacing the traditional institution of marriage without necessarily undermining the fabric of family life, I wonder whether this Court should not begin to reconsider its stance as to the justifiable distinction that it accepts, in certain matters, between marriage on the one hand and other forms of family life on the other, even when it comes to social security and related benefits. CONCURRING OPINION OF JUDGE KOVLER (Translation) I accepted – not without some hesitation – the Grand Chamber's argument to the effect that States have a certain margin of appreciation to treat differently couples who have contracted a civil marriage and those who have not, particularly in matters falling within the realm of social policy, including pensions and social security. As the applicant's complaints focus on her right to claim a survivor's pension and social security benefits based on the entitlement of her late “partner” (within the meaning of the domestic legislation) rather than the right to claim an “ordinary” (old‑age) pension, the domestic courts' refusal to award her the benefits in question was based on well-defined domestic-law provisions and her situation was therefore foreseeable. Accordingly, there was an objective and reasonable justification for the impugned difference in treatment and the latter did not amount to a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.", "1. Of course it is regrettable that the respondent State, to judge by the information supplied by the two parties, did not allow the applicant to claim an ordinary pension. Viewed objectively, this lack of any social welfare provision for widows who contracted a religious marriage is an infringement of the freedom of choice as to the form taken by “family life”, since, as the Court has stressed on numerous occasions, the notion of the “family” is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside of marriage (see paragraph 94 of the judgment, with further references). But the applicant's complaints do not relate to this aspect of Article 8 of the Convention. What I cannot agree with in the text of the judgment are the Court's pronouncements on marriage under Islamic law.", "I think it would have been wiser to refrain from making any assessment of the complexity of the rules of Islamic marriage, rather than portraying it in a reductive and highly subjective manner in the short section entitled “History” (see paragraphs 36-37), where what is left unsaid speaks louder than what is actually said. Hence, to state that “Islamic law ... recognises repudiation (talâk) as the sole means of dissolving a marriage”, such repudiation being “a unilateral act on the part of the husband”, and not to mention that the woman can also seek a divorce, for instance if her husband is unable to maintain the family, is to present only half the picture. Had the Court really been interested in the financial position of the applicant, whose complaints it reclassified, it could have analysed in greater detail in its judgment the financial relationship between married couples under Islamic law. The husband has to pay a dowry, which belongs to the wife unless she agrees otherwise (Koran, 4:4); after divorce, the man cannot claim back the dowry unless the woman agrees to it (Koran, 2:229); the woman can obtain a divorce by buying back her freedom (Koran, 2:229); finally, men and women are each entitled to a share of the inheritance (Koran, 4:7, 4:11 and 4:32). This analysis would have enabled the Court to give a more qualified interpretation of the “legitimate aim” of the 1926 Turkish Civil Code, instead of denouncing “a marriage tradition which places women at a clear disadvantage, not to say in a situation of dependence and inferiority, compared to men” (see paragraph 81).", "The language of politicians and NGOs is not always appropriate to the texts adopted by an international judicial body. Unfortunately, in another case (Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003‑II), the Court had already, in my view, committed a serious error by passing judgment on the Islamic system of values (see my concurring opinion in that case), when it could easily have refrained from such a demonstration of ideological activism. The European Convention on Human Rights is not the only instrument of its kind. The Universal Islamic Declaration of Human Rights (21 Dhul Qaidah 1401 – 19 September 1981) also contains certain provisions (in particular Article XX on the rights of married women) which, had the Court taken them into account, would have prevented it from reaching hasty conclusions which I regret being obliged to adopt together with the rest of the text of the judgment.", "I would like to see the European Court of Human Rights take a more anthropological approach in the positions it adopts, by “not just exploring difference, but exploring it differently” (“non seulement penser l'autre, mais le penser autrement”) (see, in particular, C. Eberhard, Le droit au miroir des cultures – Pour une autre mondialisation, Paris, 2010). Otherwise, the Court is in danger of becoming entrenched in “eurocentric” attitudes." ]

[ "FIFTH SECTION CASE OF DELECOLLE v. FRANCE (Application no. 37646/13) JUDGMENT STRASBOURG 25 October 2018 FINAL 25/01/2019 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Delecolle v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President,André Potocki,Síofra O’Leary,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov,Lado Chanturia, judges,and Milan Blaško, Section Registrar, Having deliberated in private on 25 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "37646/13) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Roger Delecolle (“the applicant”), on 5 June 2013. 2. The applicant was represented by Mr P. Spinosi, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs. 3.", "The applicant alleged a violation of Article 12 of the Convention. He complained that he had been denied the right to marry on the grounds that his marriage had been subject to the authorisation of his supervisor or the guardianship judge. 4. On 18 September 2015 notice of the application was given to the Government. 1.", "By letter of 15 February 2016, counsel for the applicant informed the Court of his client’s death on 4 February 2016. He requested that the Court extend his deadline for replying to the Government’s observations so that he could ascertain whether any rightful claimants wished to continue the proceedings. 2. On 6 September 2016 the Court was informed that M.S., the applicant’s partner, intended to pursue the application. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 3. The applicant, who is now deceased, was born in 1937 and lived in Paris. 4. On 23 June 2009 the guardianship judge of the District Court of the 15th Administrative District of Paris placed the applicant, who was then seventy-two years of age, under enhanced protective supervision (curatelle renforcée) for five years, on an initial request from his adoptive daughter. In order to reach her decision, the judge first of all requested the opinions of Dr M.F.", "and Dr J‑P.B., two specialists, who each drew up a medical certificate, on 25 November 2008 and 14 March 2009 respectively. She appointed M.-C.M as supervisor (see paragraphs 24 to 34 below for further details on the protective supervision system). 5. The applicant applied to the Paris Regional Court for the lifting of the measure, in the alternative for his placement under ordinary supervision, and in the further alternative for the reduction of the period of supervision to twenty-four months. On 18 December 2009 the Paris Regional Court dismissed those requests.", "It noted that the report drawn up by Dr R., a neuropsychiatrist whom the applicant had consulted, had ruled out any form of dementia but had confirmed a slight cognitive impairment and some psychological fragility and vulnerability, rendering a protective measure necessary in view of the extent of the applicant’s personal assets. The court agreed with Dr B. that the applicant had previously considered the management of his real property as a hobby, that he no longer had the physical and mental capacities for performing that task, that it was important that he be relieved of the said task of managing his business interests and tax returns, and that, similarly, he should no longer be allowed to dispose of his property. However, the court considered that the measure could be adjusted on the basis of the cognitive impairment noted, allowing him to hold a bank account and a cash withdrawal card. 6. The applicant requested his supervisor’s authorisation to marry M.S., a friend whom he had known since 1996 and who had become his partner in 2008.", "The supervisor interviewed M.S. and the applicant, at first separately and then together. They informed her of the importance which they attached to the religious dimension of marriage. On 17 December 2009 the supervisor refused to authorise the marriage on the grounds that she had only known the applicant for a few months and that she therefore lacked the necessary background to authorise a wedding. 7.", "By order of 21 December 2009, the guardianship judge ordered a social inquiry, and commissioned the Département Union of Family Associations (the “UDAF”) to gather information on the applicant’s living conditions, lifestyle, social status and circle of friends. The applicant appealed to the Paris Court of Appeal against that order. 8. On 21 December 2009 the guardianship judge commissioned a medical opinion, on her own initiative, in order to consolidate her knowledge of the case file with an eye to determining the applicant’s capacity to enter into wedlock. 9.", "On 18 January 2010 the psychiatrist appointed by the judge drew up a detailed medical certificate concluding that the applicant suffered from intellectual disorders. While noting the applicant’s capacity to consent to marriage, the psychiatrist considered him incapable of dealing with the consequences of his consent in terms of his property and finances. In his report, quoting passages from his interview with the applicant, the psychiatrist gave his personal opinion on the facts of the case, including works carried out by the applicant on his apartment. He also considered that some of the arguments put forward by the applicant in favour of his marriage “bordered on the absurd”, including the fact that his grandmothers had also remarried at an advanced age and that he wanted help in looking after himself and carrying out everyday chores. 10.", "On 1 March 2010 the Paris Court of Appeal declared inadmissible the applicant’s appeal against the order of 21 December 2009. It held that it was in the interests of a vulnerable adult for the guardianship judge to take all the necessary action to ensure his protection, bearing in mind that a person under a supervision order can only get married with the authorisation of the supervisor, or failing that, of the judge, who could order a social inquiry or an inspection by a person of his or her choosing. The court noted that that was precisely the option which had been taken by the guardianship judge in issuing two separate orders for a medical examination and a social inquiry. 11. On 1 June 2010 the UDAF submitted its report.", "It emphasised that there was a financial stake at the heart of a major family conflict, in which the applicant’s interest and well-being did not seem to be given much consideration. It noted that the applicant’s daughter and M.S. accused each other of being primarily interested in the applicant’s fortune, and that it was unclear whether the latter was being influenced by anyone. The UDAF added that the applicant was deeply affected by the conflict and that he seemed to consider marriage as a way of ensuring that he had someone at his side to assist him and to organise his daily life, and to avoid having to end his life on his own. 12.", "On 24 June 2010, after hearing the applicant and his daughter, the guardianship judge dismissed the applicant’s request. While noting that no one disputed the latter’s attachment to M.S., it ruled that that was insufficient to justify authorising the planned wedding. Having pointed out that the applicant and M.S. were former alcoholics and that the applicant was apparently still drinking, the judge stated that he “was therefore only seeking greater safety in marriage in order to prevent a possible break-up and therefore the risk of ending his life alone”. Furthermore, she considered that the lack of clarity as to the financial implications of the marriage was particularly worrying as the applicant was torn between his daughter and M.S., and financial considerations had manifestly led to a serious conflict between the two, quoting the UDAF’s findings on that point.", "Without pronouncing on the religious dimension mentioned by the applicant, she concluded that the planned marriage as it stood was not in the applicant’s interests. The applicant appealed. 13. By judgment of 6 September 2011 the Paris Court of Appeal upheld the guardianship judge’s decision of 24 June 2010. It noted that although the applicant had on several occasions expressed the wish to marry M.S., the serious disorders from which he had been suffering for several years had severely affected his judgment, as noted in the medical certificates of 14 March 2009 and 18 January 2010.", "Moreover, his anosognosia had prevented him from planning his joint life with his partner, taking account of the financial and legal implications of marriage. Furthermore, while the applicant seemed emotionally attached to his partner, the court noted that since they had been living together the applicant had been managing his affairs in an increasingly unreasonable manner, and his supervisor had not always been able to protect his interests. In particular, the applicant had had work carried out in the family apartment to the tune of 250,000 euros a few months after his wife’s death, and had placed her furniture in storage under somewhat questionable conditions. The court of appeal also noted that a draft handwritten will had been prepared on 14 August 2009 in M.S.’s favour, observing that according to his lawyer’s submissions, the applicant held assets of some 6,000,000 euros and had concluded with his deceased wife a universal community of assets contract. The court of appeal further noted that the applicant’s relations with his daughter, M.D., had seriously deteriorated.", "The court of appeal concluded that although the inquiries ordered by the guardianship judge had mentioned the applicant’s and M.S.’s mutual affection, the psychopathological turn in his disorders and his failing perception of the realities of his finances were such that he could not give his informed consent to marriage. 14. The applicant appealed on points of law. In that appeal he also put a request for a preliminary ruling (a “QPC”) on the constitutionality of Article 460 (1) of the Civil Code. He submitted that that provision contravened, in particular, the principle of freedom of marriage by making the marriage of a supervisee subject to the supervisor’s authorisation, or failing that, to that of the guardianship judge.", "15. By decision of 29 June 2012 (no. 2012-260 QPC), the Constitutional Council, noting that the right to marriage was based on Articles 2 and 4 of the 1789 Declaration of the Rights of Man and the Citizen, declared Article 460 (1) of the Civil Code to be in conformity with the Constitution, given that it did not prohibit marriage but rather permitted it with the supervisor’s authorisation, the withholding of which could be brought before a court, which was required to organise adversarial proceedings followed by a reasoned decision, against which an appeal also lay. The court also considered that, having regard to the personal and pecuniary obligations stemming from marriage, the latter was an important civil act with which the said restrictions on freedom of marriage did not interfere disproportionately. 16.", "On 5 December 2012 the Court of Cassation dismissed the applicant’s appeal on points of law. On the one hand, it noted that the Constitutional Council had declared Article 460 (1) of the Civil Code constitutional, and on the other, held that the Paris Court of Appeal had lawfully reasoned its decision by analysing not only the relevant medical certificates but also the other documents on file, thus enabling it to deduce that the applicant was incapable of providing informed consent to his marriage owing both to the psychopathological evolution of his disorders and to his loss of control over the realities of his financial situation. 17. On 15 February 2016 counsel for the applicant informed the Court of his client’s death on 4 February 2016. 18.", "On 6 September 2016 he informed the Court of M.S.’s intention to pursue the application. The Registry of the Court invited the Government to present their comments on that development. II. RELEVANT DOMESTIC LAW A. Imposition of a protective measure, and the two systems of supervision 19.", "French law establishes legal majority at the age of eighteen, as of which age anyone may exercise the rights available to him or her (Article 414 of the Civil Code). However, some persons of full age are protected by law. Thus persons who are unable alone to protect their own interests owing to a medically certified impairment of their mental or physical faculties are entitled to legal protection (Article 425 of the Civil Code). 20. French law provides for three categories of persons of full age lacking legal capacity.", "The first covers “persons of full age under judicial protection”, who only require temporary protection in the conduct of their civil affairs or representation in the performance of specific acts (Article 433 of the Civil Code). The second category concerns persons of full age under supervision orders (curatélaires) who are not unable to act alone but require constant assistance or supervision in the conduct of important civil affairs where it has been established that judicial protection cannot provide sufficient protection (Article 440 (1) and 3 of the Civil Code). Lastly, persons who require constant representation in the conduct of civil affairs may be placed under guardianship orders if it is established that neither judicial protection nor supervision will provide sufficient protection (Article 440 (3) and (4) of the Civil Code). 21. Supervision can take two different forms, namely standard and enhanced.", "While standard supervision is the ordinary-law mechanism commonly used, a court may at any time order enhanced supervision. The latter arrangement differs in that only the supervisor receives the supervisee’s income in an account opened in the latter’s name. The supervisee personally settles his or her expenditure vis-à-vis third persons. The supervisor is required to draw up an annual accountancy report (Article 472 of the Civil Code). 22.", "This protective measure can be ordered by a court only if strictly necessary and where no other legal means or less stringent measures are practicable (Article 428 of the Civil Code). The measure is structured and customised in accordance with the degree of impairment of the individual’s personal faculties (Article 428 (2) of the Civil Code). Applications for a protective measure must, on pain of inadmissibility, be accompanied by a detailed certificate prepared by a medical officer who is selected from a list drawn up by the State Prosecutor (Article 431 (1) of the Civil Code). The person concerned is heard by the judge (Article 432 of the Civil Code). 23.", "An application for supervision may be lodged, in particular, by a relative of the person concerned (Article 430 of the Civil Code). The guardianship judge hears the person to be supervised in private session, when he or she may be accompanied by a lawyer or, subject to the judge’s agreement, by a person of his or her choosing (Article 432 of the Civil Code). The judgment establishing the supervision must be notified to the supervisee. Unless provisional enforcement is ordered, the period for appealing and the appeal itself, lodged within fifteen days of the decision or its notification (Article 1239 of the Code of Civil Procedure), stay the execution of the decision (Article 1232 of the Code of Civil Procedure). 24.", "The judge establishes the length of the period of supervision, which cannot exceed five years, save in exceptional cases (Article 441 of the Civil Code). 25. An appeal lies with the regional court against decisions given by the guardianship judge (Article 1239 of the Code of Civil Procedure, version in force at the material time). B. Consequences of the supervision order 26.", "Persons under supervision orders are prohibited from conducting specific affairs without the supervisor’s assistance (Article 467 of the Civil Code). For the conclusion of a written act, the supervisor’s assistance is manifested by his or her signature on the document beside the protected person’s signature (Article 467 (2) of the Civil Code). Where the supervisor withholds his or her assistance, the supervisee can request the authorisation of the guardianship judge to proceed alone (Article 469 (3) of the Civil Code). 27. Article 465 of the Civil Code lays down regulations on acts conducted by adults under supervision as of the promulgation of the judgment imposing the protective measure.", "An act unlawfully conducted by a supervisee may be annulled. The Civil Code sets out three scenarios, depending on the nature of the act: mandatory nullity, nullity subject to proof of damage, and nullity subject to proof of injury or abuse. Nevertheless, the Civil Code explicitly lays down specific rules on specific civil acts, for example the drafting of a will (Article 470 (1) of the Civil Code), inter vivos gifts (Article 470 (2) of the Civil Code), and the conclusion of a “civil solidarity pact” (“PACS”, Article 461 of the Civil Code) or marriage (Article 460 (1) of the Civil Code). 28. A person under a supervision order is only allowed to marry with the authorisation of the supervisor, or failing that, of the judge.", "In cases where marriage has been contracted without a request for authorisation or where the supervisor has withheld authorisation, the latter may apply for the annulment of the marriage (see Cass. 1re civ., 17 May 1988, appeal (pourvoi) no. 86-10817, Bull. I, no. 147, and Cass.", "1re civ., 5 May 1993, appeal (pourvoi) no. 91-11700). 29. Supervisees may not conclude a PACS without their supervisors’ assistance (Article 461 (1) of the Civil Code). THE LAW I. LOCUS STANDI OF M.S.", "A. The parties’ submissions 1. The Government 30. First of all, the Government, relying on the judgment in the case of Kurić and Others v. Slovenia, (no. 26828/06, § 276, 13 July 2010), submitted that M.S.", "was neither an heir to nor a relative of the applicant. Under French law “partner” status did not confer status as heir. On the other hand, M.D., the applicant’s daughter, did hold such status. If M.S. claimed to be the applicant’s universal legatee, the Court had previously ruled that such status alone did not confer the right to pursue the application (see Thévenon v. France (dec.), no.", "2476/02, ECHR 2006‑III). 31. Finally, the Government argued that the applicant’s situation had been a special case, namely that of a person under an enhanced supervision order whose interests the French State had aimed to protect pursuant to the legislation applicable to protected persons of full age. The alleged violation was therefore not an important matter of public interest liable to help clarify, protect or develop the standards set out in the Convention. 32.", "The Government deduced from the foregoing considerations that M.S. fulfilled none of the conditions laid down in the Kurić and Others judgment (cited above) and that consequently she could not pursue the application lodged by the applicant. They therefore requested that the Court strike the case out of its list, pursuant to Article 37 § 1 of the Convention. 2. M.S.", "33. M.S. submitted that she had a legitimate interest in continuing the case in order to pursue the examination of the application lodged by the applicant, with whom she had maintained an intimate, sincere and constant relationship between 2008 and his death in 2016. Their relationship amounted to private and family life within the meaning of Article 8 of the Convention, and the applicant and M.S. had wished to officialise that relationship through marriage.", "The applicant added that she was primarily concerned by the refusal to authorise her planned marriage to the applicant. 34. She also affirmed that the application, which concerned access to marriage by an adult under a supervision order, raised an issue which transcended the person and interests of the applicant and his heirs in that the situation in question could affect other persons. Finally, respect for human rights as secured under the Convention and the protocols thereto warranted continuing the application, in pursuance of Article 37 §1 (b) of the Convention. B.", "The Court’s assessment 35. The Court notes from the outset that the issue before it concerns neither the loss of victim status because the domestic authorities have already remedied the complaint, as was the case in Kurić and Others (cited above) relied upon by the Government, nor the capacity of a third party to lodge an application with the Court on behalf of a deceased person, in which case consideration would be required of whether or not the complaints are transferable or not. In the present case, the Court must adjudicate a different hypothesis, that is to say the pursuit of the application lodged by the initial applicant in his capacity as the direct victim, after his death during the proceedings before the Court. 36. The Court reiterates that in several cases in which an applicant had died during the proceedings before it, it has had regard to a wish voiced by heirs or close relatives to continue the application (see, for example, Deweer v. Belgium, 27 February 1980, §§ 37-38, Series A no.", "35; X v. the United Kingdom, 5 November 1981, § 32, Series A no. 46; Vocaturo v. Italy, 24 May 1991, § 2, Series A no. 206-C; G. v. Italy, 27 February 1992, § 2, Series A no. 228-F; Pandolfelli and Palumbo v. Italy, 27 February 1992, § 2, Series A no. 231-B; X v. France, 31 March 1992, § 26, Series A no.", "234-C; and Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281-A), or the existence of a legitimate interest on the part of a person wishing to have the application pursued (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII). 37. Conversely, the Court has a practice of striking cases out of its list where no heir or close relative wishes to pursue the proceedings (see, among other authorities, Scherer v. Switzerland, judgment of 25 March 1994, §§ 31-32, Series A no.", "287, and Thévenon, cited above). The same applies where the request for the continuation of proceedings is submitted by a person who has provided no evidence either of his or her status as heir or close relative of the applicant, or of any legitimate interest (see Léger v. France [GC], no. 19324/02, § 50, 30 March 2009). 38. In the instant case, the person wishing to pursue the case before the Court is not an heir.", "In fact, M.S. was the applicant’s partner for some eight years, up until his death. Moreover, neither their relationship nor their intention to marry is in dispute. The Court reiterates that a couple such as the applicant and M.S. who have been living together for many years constitute a “family” for the purposes of Article 8 of the Convention and are entitled to its protection, notwithstanding their relationship exists outside marriage (see Johnston and Others v. Ireland, 18 December 1986, § 56, Series A no.", "112; Velikova v. Bulgaria (dec.), no. 41488/98, 18 May 1999; and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII). The Court further notes that M.S. requests the continuation of an application which concerns, precisely, the fact that the applicant could not marry her owing to the domestic courts’ refusal to authorise such marriage.", "39. Finally, as the Court pointed out in the above-cited Malhous decision, human rights cases before the Court generally also have a moral dimension, which must be taken into account when considering whether the examination of an application after the applicant’s death should be continued – all the more so if the main issue raised by the case transcends the person and the interests of the applicant (see also Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court considers that the subject matter of the present application, that is to say the restrictions on the right to marry of persons placed under a legal protection regime, raises an important general question which transcends the person and the interests of the applicant and his heirs in that it may affect other persons (cf., mutatis mutandis, Malhous, cited above). 40.", "The Court therefore considers that in the present case the conditions for striking a case out of the list as defined in Article 37 § 1 of the Convention have not been fulfilled, and that the examination of the application should continue on the basis of Article 37 § 1 in fine. It consequently rejects the Government’s request for the case to be struck out. For practical reasons, the present judgment will continue to use the word “applicant” even though that status is no longer assigned to Roger Delecolle but to his partner, M.S. (see, for example, Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999‑VI, and Ergezen v. Turkey, no.", "73359/10, § 30, 8 April 2014). II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION 41. The applicant complained that he had been unable to marry owing to the fact that his marriage was subject to the authorisation of his supervisor of the guardianship judge. He alleged a violation of Article 12 of the Convention, which provides: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” A. Admissibility 42.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions (a) The applicant 43. The applicant submitted that the right to marry was a fundamental freedom guaranteed by Article 12 of the Convention and Article 23 of the International Covenant on Civil and Political Rights. In his view, Article 460 (1) of the Civil Code, which, in respect of the marriage of a person under a supervision order, required the authorisation of the supervisor, or failing that, of the guardianship judge, was contrary to the fundamental principle of freedom to marry, a strictly personal and private act the exercise of which should be guaranteed in all cases where the personal consent of an adult supervisee was shown to be genuine. The applicant pointed out that he had explicitly manifested a private and personal wish, motivated inter alia by religious considerations, to marry M.S. 44.", "Relying on the judgments in the cases of Frasik v. Poland (no. 22933/02, ECHR 2010 (extracts) and Christine Goodwin v. the United Kingdom [GC] (no. 28957/95, ECHR 2002‑VI), he argued that when the Court was determining a case under Article 12, it did not apply the “necessity” and the “pressing social need” criteria used in the framework of Article 8 of the Convention. 45. He also considered that the only possibility granted to the supervisor for requesting annulment of the marriage was a measure geared to ensuring a better balance between the freedom to marry and the protection provided to the supervisee.", "46. Finally, the applicant also noted the inconsistency of domestic law in allowing supervisees freely to enter into a PACS. (b) The Government 47. The Government argued that the provisions of Article 460 (1) of the Civil Code did not set forth a general ban on marriage but merely laid down an obligation to obtain the supervisee’s agreement in order to ensure the validity of his or her consent. Those requirements helped to safeguard the protected adults’ consent to marriage and also their interests, in order to prevent the risk of their inheritance being hijacked or their being exposed to psychological influence.", "48. As regards the instant case, the Government observed that several medical reports had been drawn up, both before the imposition of the supervision order and after the applicant had submitted his request for authorisation. The protective measure imposed on the applicant could not have lasted for more than five years, and that period could only be extended by a judge if his personal faculties deteriorated such as to preclude any likelihood of improvement according to the latest research relevant to his state of health. Furthermore, the guardianship judge, whose decisions were subject to appeal, could terminate the supervision order, amend it or replace it with a different measure, including less stringent options. 49.", "The Government also emphasised that the applicant had availed himself of all the remedies available to him and been heard by the domestic courts on numerous occasions. The decisions given were duly reasoned and based on the state of health of the applicant, who could not have provided informed consent in view of the deterioration of his perception, his mental and cognitive capacities and his judgement. The domestic courts had also had regard to the extent of his property, the management problems which had emerged since he had started living with his partner, as well as the increasing numbers of unreasonable acts and instances of overspending, or again the drawing up of a will to the advantage of M.S., against the background of a heated dispute between the latter and the applicant’s daughter. 2. The Court’s assessment 50.", "The Court reiterates that Article 12 guarantees the fundamental right of a man and a woman to marry and to found a family. The exercise of this right gives rise to personal, social and legal consequences. It is subject, in both procedural and substantive terms, to the national laws of the Contracting States, but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see F. v. Switzerland, 18 December 1987, § 32, Series A no. 128; Christine Goodwin, cited above, § 99; and Frasik, cited above, § 88). 51.", "In consequence, the matter of conditions for marriage in the national laws is not left entirely to Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far (ibid.). 52. The Convention institutions have accepted that limitations on the right to marry laid down in the national laws may comprise formal rules, but also substantive provisions based on generally recognised considerations of public interest, in particular concerning capacity (see Frasik, cited above, § 89).", "53. Moreover, in contrast to Article 8 of the Convention, which sets forth the right to respect for private and family life, and with which the right “to marry and to found a family” has a close affinity, Article 12 does not include any permissible grounds for an interference by the State that can be imposed under paragraph 2 of Article 8 “in accordance with the law” and as being “necessary in a democratic society”, for such purposes as, for instance, “the protection of health or morals” or “the protection of the rights and freedoms of others”. Accordingly, in examining a case under Article 12 the Court would not apply the tests of “necessity” or “pressing social need” which are used in the context of Article 8 but would have to determine whether, regard being had to the State’s margin of appreciation, the impugned interference was arbitrary or disproportionate (see Frasik, cited above, § 90). 54. The Court first of all observes that persons under supervision are not deprived of the right to marry.", "On the other hand, their right to marry is subject to prior authorisation, owing to the restriction on their legal capacity, which is one of the substantive grounds whose relevance is acknowledged by case-law. 55. The Court notes that in the present case the imposition of a supervision order on the applicant corresponds to the requirements set out in the Court’s case-law (see Lashin v. Russia, no. 33117/02, § § 80‑81, 22 January 2013). Indeed, two specialist medical reports were produced before the measure was imposed.", "Furthermore, while the applicant appealed to the Regional Court against his placement under supervision (which appeal was dismissed on 18 December 2009), he did not lodge an appeal on points of law (see paragraph 9 above). 56. As regards the subsequent decision denying the applicant’s right to marry, it was first of all taken by the supervisor, after hearing both the applicant and M.S. (see paragraph 11 above). The guardianship judge then adjudicated, after, first of all, a social inquiry, which highlighted a financial stake at the heart of a major family dispute that had apparently involved little consideration of the applicant’s interests and well-being, and secondly, a psychiatric examination (see paragraphs 12 to 17 above).", "The psychiatrist appointed by the judge found that the applicant suffered from intellectual disorders, and, while concluding that the applicant had capacity to consent to marriage, he considered him incapable of dealing with the consequences of his consent in terms of his property and finances. 57. The Court notes that, drawing on those two reports and the hearing of the applicant, the guardianship judge refused the applicant the right to marry, on the grounds that such a step was not in his interest. It further notes that the decision given on 24 June 2010 is fully reasoned and that the applicant was able to appeal against it. The judgment of the Paris Court of Appeal, which was also reasoned, was delivered following a hearing during which the applicant, who was present and accompanied by his lawyer, was able to make submissions.", "58. The Court observes that the applicant subsequently appealed on points of law, availing himself of the option of putting a “QPC” concerning the alleged infringement of the principle of freedom to marry owing to the requirement for an adult under a supervision order to seek the authorisation of the supervisor, or failing that, of the guardianship judge. In its decision of 29 June 2012, the Constitutional Council noted that Article 460 (1) of the Civil Code did not prohibit marriage but rather permitted it with the supervisor’s authorisation, the withholding of which could be brought before a court, which then had to organise adversarial proceedings. The court found that, having regard to the personal and pecuniary obligations stemming from marriage, the latter was an important civil act with which the said restrictions on freedom of marriage did not disproportionately interfere (see paragraph 20 above). The Court of Cassation, for its part, had dismissed the applicant’s appeal on points of law, firstly by citing the Constitutional Council’s decision and secondly by ruling that the Paris Court of Appeal had lawfully reasoned its decision by analysing not only the relevant medical certificates but also the other documents on file, thus enabling it to deduce that the applicant was incapable of consenting in an informed manner to his own marriage (see paragraph 21 above).", "59. Most of the violations of Article 12 of the Convention previously found by the Court concerned individuals with full legal capacity (see, in particular, F., cited above; B. and L. v. the United Kingdom, no. 36536/02, 13 September 2005; and O’Donoghue and Others v. the United Kingdom, no. 34848/07, ECHR 2010). In the Court’s view, the fact that the applicant’s right to marry had been restricted by the national authorities meant that his situation was different, and that the present case thus concerns a different hypothesis, that is, a restriction imposed on a person who lacks full legal capacity.", "60. The Court considers that both the impugned legal provisions and the refusal, in the instant case, to authorise the applicant’s marriage, fall within the margin of appreciation afforded to the respondent Government. Unlike in situations where individuals are deprived of the right to marry under any circumstances (see, for example, Christine Goodwin, cited above, § 103), the obligation placed on the applicant to request prior authorisation for his marriage had been based on the fact that he was under a legal protection order, that is to say an enhanced supervision order. Accordingly, the authorities had a margin of appreciation, enabling them to provide him with effective protection depending on the circumstances, and thus to anticipate consequences liable to be detrimental to his interests. As regards Article 460 (1) of the Civil Code, the Court notes that that provision in fact preserves the right to marry, as confirmed by the Constitutional Council.", "It is true that some restrictions are laid down. However, the Court observes that those restrictions are properly regulated, with remedies under which restrictions on the right to marry can be subjected to judicial review, in the framework of adversarial proceedings. That was the situation for the applicant in the present case, since he availed himself of the remedies provided in domestic law and was able to make submissions in adversarial proceedings in order to contest the impugned decision (see paragraphs 62 and 63 above). Moreover, as stated by the Constitutional Council, the supervision system is aimed at protecting the interests of the supervisee and promotes the latter’s autonomy as far as possible (decision no. 2012-260 QPC, cited above, § 5).", "61. Finally, in connection with the applicant’s argument that a person under a supervision order is free to conclude a PACS (and not marriage) (see paragraph 50 above), the Court notes, on the one hand, that the matter of concluding a PACS, which is regulated differently from marriage, is extraneous to the facts of the present case, and on the other, that at any event domestic law makes the conclusion of such a pact conditional upon the assistance of the supervisor (see paragraph 33 above). 62. Having regard to the foregoing considerations, and in the light of the circumstances of the case and of the margin of appreciation available to the domestic authorities, the Court holds that the restrictions on the applicant’s right to marry did not limit or reduce that right in an arbitrary or disproportionate manner. There was therefore no violation of Article 12 of the Convention.", "FOR THESE REASONS, THE COURT 1. Holds that M.S. has standing to replace the applicant in the present case, and rejects, unanimously, the Government’s request to strike the case out of its list of cases; 2. Declares, unanimously, the application admissible; 3. Holds, by six votes to one, that there has been no violation of Article 12 of the Convention.", "Done in English, and notified in writing on 25 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge A. Nußberger is annexed to this judgment. A.N.M.B. SEPARATE OPINION OF JUDGE NUSSBERGER A. The central issue of the case This case raises a “typical” human rights issue.", "Just how far can the State restrict individuals’ autonomy for the purposes of protecting them against their own will? This is a thorny and important question, especially in the case of a right – such as the right to marry – which is considered as so essential that it is the subject of a separate Convention article. The majority of the Chamber wish such an interference only to be subject to procedural supervision – affording the respondent Government a wide margin of appreciation – whereas in my view what has to be assessed is the proportionality of the restrictive measure. B. Systemic interpretation of Article 12 in the light of Article 8 of the Convention It is true that the wording of Article 12 of the Convention (right to marry) is different from that of Article 8 of the Convention (right to respect for private and family life).", "Article 12 does not define the limits of possible interferences or make them subject to supervision of what is “necessary in a democratic society” to attain the “legitimate aim” pursued; it confines itself to stating that the right must be safeguarded “according to the national laws governing the exercise of this right” (see Jaremowicz v. Poland, no. 24023/03, § 50, 5 January 2010). What conclusion should be drawn from this? Can it be deduced from the literal text of the Convention that the right to marry is less deserving of protection than the right to respect for private and family life? The Commission seemed to gainsay such an approach when it spoke of an “absolute right in the sense that no restrictions similar to those in para.", "(2) of Art. 8 of the Convention are expressly provided for” (see X v. the United Kingdom (dec.), no. 6564/74, 21 May 1975), whereas the case-law of the Court would seem to suggest that Article 12 provides a lower level of protection than Article 8. Thus the Court verifies whether the limitations introduced by domestic law restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see L. v. the United Kingdom, no. 36536/02, § 34, 13 September 2005, and F. v. Switzerland, 18 December 1987, § 32, Series A no.", "128). Or else, as in Frasik, it determines whether, “regard being had to the State’s margin of appreciation, the impugned interference [is] arbitrary or disproportionate” (see Frasik v. Poland, no. 22933/02, § 90, ECHR 2010), but without venturing to conduct a full review of proportionality. That is also the approach adopted by the majority of the Chamber (see paragraph 57 of the judgment). Yet should we not go even further and consider the proportionality of restrictions on the right to marry, as we do under Article 8?", "That raises a question of interpretative methodology, which is especially important in view of the structural imbalance in the interpretation of these two Convention articles. Whereas in hundreds of judgments the Court has widened the guarantees of Article 8, transforming them into a kind of “umbrella protection”, it has treated the interpretation of Article 12 as a “poor relation”. However, if the right to marry were not governed by a separate provision it could just as easily fall within the ambit of Article 8, as evidenced by the case-law on the rights of same-sex couples. Thus in its Schalk and Kopf judgment the Court interpreted the “to marry” concept set out in Article 12 in its historical context and only applied it to heterosexual marriage (see Schalk and Kopf v. Austria, no. 30141/04, § 55, 24 June 2010), while analysing under Article 8 the authorities’ rejection of a same-sex couple’s application to marry (see Schalk and Kopf, cited above, § 94).", "Does not such case-law, which applies a different yardstick to same-sex couples and different-sex couples, lead to differing levels of protection? I would take the view that it contradicts the systemic interpretation method under which the Convention “must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions” (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 171, ECHR 2012). Furthermore, such an interpretation is incompatible with the Court’s jurisprudential premise that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship (see Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 165, 21 July 2015; Schalk and Kopf, cited above, § 99; and Vallianatos and Others v. Greece [GC], nos.", "29381/09 and 32684/09, §§ 78 and 81, ECHR 2013). For all these reasons I consider that, in the sphere of restrictions on the right to marry, we must not confine ourselves to superficially checking whether the interference was arbitrary and leaving the respondent Government a wide margin of appreciation. On the contrary, an analysis is required, as in the case of Article 8, of whether, in the individual case, the prohibition of marriage was “necessary in a democratic society” and met “a pressing social need”. C. Proportionality of the prohibition of marriage in the present case In the present case, the starting point for the analysis must be the applicant’s clearly expressed wish to marry a long-standing female friend. At the time he had taken that decision the applicant had known her for fifteen years (see paragraph 10 of the judgment).", "His attachment to her was undisputed (see paragraph 16 of the judgment). His capacity to consent to marriage was confirmed by the authorities (see paragraph 13 of the judgment). Moreover, the decision was based on religious grounds, family traditions and the wish to have “someone at his side to assist him and to organise his daily life, and so that he would not end his life on his own” (paragraph 15 of the judgment). Despite all those considerations, the applicant was prohibited from marrying M.S. It is true, as emphasised by the Government, that it was not a “general ban on marriage” but merely “an obligation to obtain the supervisee’s agreement” (see paragraph 51 of the judgment).", "However, since the applicant had been denied that agreement, his prohibition of marriage was absolute and final. He contested the prohibition at all the judicial levels up to the Court of Cassation, even putting a priority question as to constitutionality to the Constitutional Council. Having lost his case at the age of seventy-five, he could not reasonably have expected any change in the situation before his death (even though, theoretically, that possibility could not have been ruled out because the enhanced supervision had only been imposed for five years). Indeed, it was an effective legal bar within the meaning of the Court’s case-law (see Jaremowicz, cited above, § 60). Is such a serious interference with the exercise of one of the most personal rights of an individual compatible with the Convention?", "The legitimate aim of such a restriction was obviously to protect the applicant, as a vulnerable person, from actual dangers of which he himself was unaware. The danger here was purely financial, in view of the extent of the applicant’s personal fortune. The authorities based their decision on the fact that the applicant could not have controlled the consequences of his consent to marriage in terms of his property and finances. He was alleged to have considered the management of his real estate as “a hobby” (see paragraph 9 of the judgment), his expenditure on refurbishment work in his apartment was considered unreasonable (see paragraph 17 of the judgment), he had reportedly not stopped drinking (see paragraph 16 of the judgment), but he was allowed to have a bank account and a cash withdrawal card (see paragraph 9 of the judgment). It is clear that if he had been poor no one would have objected to his planned marriage.", "Marriage indisputably has not only legal but also social and personal consequences. Nevertheless, the French authorities did not take seriously, and even ridiculed, the arguments put forward by the applicant for wishing to get married. The psychiatrist appointed by the guardianship judge considered the applicant’s wish not to be abandoned as “bordering on the absurd” (see paragraph 13 of the judgment), which approach starkly contrasts with the stance adopted by the Court, which has on many occasions accepted that needs in terms of mutual support and assistance are reasons justifying the right to marry (see Vallianatos, cited above, § 81). Furthermore, the guardianship judge did not pronounce on the religious aspects mentioned by the applicant (see paragraph 16 of the judgment). At the same time, the financial threats from which the applicant allegedly needed protection were not clearly defined.", "A clear distinction must be drawn between the applicant’s interests and those of his potential heirs. It was not necessarily in the applicant’s interest to preserve his assets for his future heirs, but rather to continue to live until his death without financial worries and in a manner of his own choosing. In the present case, unlike in many other cases, the Court is not called upon to balance the different rights secured under the Convention. The interests of persons other than the applicant – those of his adopted daughter and those of his future wife, both of whom are potential heirs – do not amount to legitimate expectations liable to be protected under Article 1 of Protocol No. 1.", "As regards the danger of exploitation and abuse, it should be remembered that even after the marriage the applicant would have remained under an enhanced supervision order. Consequently, all the major financial transactions such as the drawing up of a will or inter vivos gifts would have continued to be overseen by the supervisor (Article 470 (1) and (2) of the Civil Code). It is true that M.S., as the applicant’s wife, would have had joint control over the spending of his money. There again, however, her access could have been limited by restrictive measures at the financial level (restrictions on credit cards, limits on withdrawals from the applicant’s account, etc.). Moreover, the real estate – apparently accounting for most of his assets – would have remained protected.", "Further, the expenditure which had been considered “unreasonable” (see paragraph 17 of the judgment) would have been effected whether or not the applicant had been married. Accordingly, it is difficult to see how marriage could have worsened the applicant’s situation vis-à-vis such expenses. Furthermore, the example of the PACS system shows that there are less radical protective measures which are nonetheless effective, such as assistance (see paragraph 24 of the judgment). I do not agree with the Chamber majority that a single-sex couple cannot be compared with a different-sex couple in this context (see paragraph 65 of the judgment). The financial stakes are the same.", "And according to the Court’s case-law, the State has a duty to grant to both single-sex and different-sex couples “a specific legal framework providing for the recognition and protection of their ... unions” (see Oliari and Others, cited above, § 185). It is true that the risk of a person with a “slight cognitive disorder”, “psychological fragilities” and “some degree of vulnerability” (see paragraph 9 of the judgment) being exploited by third persons should not be under-estimated, particularly where such person is a large property holder. However, a restrictive measure adopted against the will of the person concerned should not, in my opinion, go beyond what is strictly necessary. Although the content of Article 460 (1) of the Civil Code is unobjectionable as such, its application in the circumstances of the present case, which resulted in a ban on marriage, is disproportionate. The measure in question is more paternalistic than protective, which is incompatible with Article 12 read in the light of Article 8.", "D. Subsidiarity of the Court’s case-law The subsidiarity principle is essential to the interpretation of the Convention. That is particularly true in cases concerning the right to marry, the field of matrimony being so closely bound up with the cultural and historical traditions of each member country (see F. v. Switzerland, cited above, § 33). There is no reason to criticise the law as such, which was in fact declared compatible with the Constitution by the Constitutional Council (see paragraph 19 of the judgment). Moreover, the Court has always acknowledged – and this takes on particular importance in a case such as the present one – that by reason of their direct and continuous contact with the vital forces of their countries, the domestic authorities are, in principle, in a better position than the international judge to give an opinion on the necessity of a restriction (see, among other authorities, A, B and C v. Ireland [GC], no. 25579/05, § 232, ECHR 2010).", "The Court must – at all costs – avoid hearing and determining such a case as a fourth instance. It was because of the principle of subsidiarity that the Chamber majority confined itself to examining the procedural safeguards on the exercise of the right in question. It is true that the applicant’s case was examined at all the French judicial levels (the guardianship judge of the District Court of the 15th Administrative District of Paris, the Paris Regional Court, the Paris Court of Appeal and the Court of Cassation). It is also true that the courts provided reasons for their decisions, referring to expert reports drawn up by medical specialists (see paragraphs 9 and 13 of the judgment). The applicant, for his part, was able to give his opinion throughout the proceedings, with the assistance of counsel.", "However, even if he was heard, he was not listened to. The Court’s task is to provide effective protection for the rights secured under the Convention, including the important right to marry. In my view, the right to marry, in the presented case, was unduly reduced to a purely financial decision and was consequently disproportionately restricted, affecting its very essence. The authorities completely disregarded the social and personal aspects of marriage. The fact is that those aspects were what counted for the applicant.", "Without in any way claiming to be in a better position to judge the case, I consider that the French authorities failed convincingly to justify their decision to the effect that the restrictions on the applicant’s right to marry had been necessary in a democratic society and had met a pressing social need. That was why I voted for a finding of a violation of Article 12 of the Convention." ]

[ "THIRD SECTION CASE OF BARKOV AND OTHERS v. RUSSIA (Applications nos. 38054/05, 38092/05, 2178/07, 21770/07, 4708/09, 46303/10, 70688/10, 30537/11 and 43594/11) JUDGMENT This version was rectified on 5 September 2016 under Rule 81 of the Rules of Court. STRASBOURG 19 July 2016 This judgment is final. It may be subject to editorial revision. In the case of Barkov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 28 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in nine applications (nos. 38054/05, 38092/05, 2178/07, 21770/07, 4708/09, 46303/10, 70688/10, 30537/11 and 43594/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine Russian nationals (“the applicants”), whose names and the dates on which they introduced their applications are set out in Appendix I. 2. Some of the applicants were represented by lawyers, whose names are listed in Appendix II. The applicant Mr Fedchenko had been granted legal aid.", "The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The applicants complained, in particular, that they had been denied an opportunity to appear in person before the appeal courts in the civil proceedings to which they were parties. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "At the material time all the applicants were detained in Russian penal facilities. 5. While in detention, the applicants Mr Baban, Mr Barkov and Mr Bogatyrev sought compensation for inadequate conditions of their detention and substandard medical care; the applicants Mr Davydov, Mr Pflyaum and Mr Yakovlev were involved in contract disputes; Mr Fedchenko was the respondent in a divorce claim; Mr Starodubtsev challenged the decision by which he had lost the status of a disabled person; and Mr Shavayev was the defendant in an action for damages brought by the Federal Customs Service. 6. None of the applicants, apart from Mr Yakovlev, were able to attend the hearings before the courts of first instance.", "The domestic courts refused the applicants leave to be present at the hearings, on the ground that there was no domestic legal provision for bringing detainees to courts. In some of the cases they quoted Article 77.1 of the Code on the Execution of Sentences (see paragraph 10 below) and the relevant provisions of the Code of Civil Procedure. In the other cases the issue of the applicants’ presence was left unaddressed. In the first-instance proceedings Mr Shavayev and Mr Starodubtsev were represented by their relatives. Mr Barkov and Mr Davydov were interviewed at courts located near the places of their detention.", "7. The applicants appealed, raising the question of their appearance in court in their appeal statements. Some submitted separate requests seeking leave to appear before the appeal court. The appeal courts either dismissed their arguments and endorsed the findings of the first-instance courts or concluded that their absence from court was in line with the legislation and did not contravene the principle of fairness. None of the applicants were present or represented at the appellate hearings.", "8. The dates of the final judgments are set out in Appendix I. II. RELEVANT DOMESTIC LAW AND PRACTICE 9. The relevant provisions of the Code of Civil Procedure (as in force at the material time) read as follows: Article 347: Scope of review in the cassation court “1. The cassation court reviews the lawfulness and reasonableness of the first‑instance court’s judgment on the basis of the arguments contained in the statements of appeal.", "It assesses the evidence in the case file, but also additional evidence if it determines that such evidence could not have been produced before the first-instance court, and ... may establish new facts and circumstances. 2. In the interests of justice the cassation court may carry out a full review of the first-instance court’s judgment.” 10. Article 77.1 of the Code on the Execution of Sentences provides that a convicted person may be transferred from a correctional colony to a temporary detention facility if his or her participation is required as a witness, a victim or a suspect in connection with some types of investigative measure in a criminal case. It does not mention the possibility for a convicted person to take part in civil proceedings, whether as a claimant or a defendant.", "THE LAW I. JOINDER OF THE APPLICATIONS 11. The Court notes that all the applicants complained that they had been unable to attend the appellate hearings in the civil proceedings to which they were parties. Having regard to the similarity of the applicants’ grievances, the Court is of the view that in the interests of the proper administration of justice the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 12.", "The applicants complained that their right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the appeal courts’ refusal of their requests to appear. Article 6 § 1 reads in the relevant part as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 13. The Government submitted that Mr Bogatyrev’s complaint was belated, because it had been introduced on 10 March 2009, that is more than six months after the final domestic decisions in his case (3 September 2008, 2 and 9 June 2009). 14. The Court notes that the applicant had set out this complaint in his first letter to the Court, dispatched on 15 October 2008, and had elaborated on it in the main application form, sent on 10 March 2009.", "It follows that the date of introduction of Mr Bogatyrev’s application lies within six months of the final decisions in his cases. The Government’s objection should therefore be dismissed. 15. The Court further notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 16. The Government submitted that all the applicants had been duly notified of the hearing dates and that the nature of the legal disputes did not call for their personal attendance. As there is no absolute right to be present at a hearing, the applicants’ right to effective participation in the proceedings had not been breached.", "The Government also indicated that as some of the applicants participated in the proceedings before the courts of first instance (see paragraph 6 above), their presence before the appeal courts was unnecessary. 17. The applicants maintained that their exclusion from the appellate proceedings had placed them at a disadvantage vis-à-vis their opponents. 18. The Court notes that although some of the applicants were provided with an opportunity to take part in the first-instance proceedings by way of representation or giving evidence on commission, all the applicants expressed the wish to attend appellate hearings in person.", "The Court notes in this regard that the Russian Code of Civil Procedure, as worded at the material time, extended the scope of review by appellate courts to both matters of law and factual issues. The appellate courts were empowered to carry out a full review of the case and to consider additional evidence and arguments which had not been examined in the first-instance proceedings (see paragraph 9 above). Given the broad scope of review of the appeal court, the fair trial guarantees enshrined in Article 6 of the Convention, including in particular the right to have knowledge of and comment on the observations made or evidence adduced by the other party, were as important in the appellate proceedings as they were in the first-instance courts. 19. The Court notes that, as in many similar cases against Russia, the applicants were denied leave to appear by reference to the absence of any legal norm making their presence mandatory (see Bortkevich v. Russia, no.", "27359/05, §§ 63-69, 2 October 2012; Karpenko v. Russia, no. 5605/04, §§ 89-94, 13 March 2012; Roman Karasev v. Russia, no. 30251/03, § 68, 25 November 2010; Artyomov v. Russia, no. 14146/02, §§ 204-08, 27 May 2010; and Shilbergs v. Russia, no. 20075/03, § 107, 17 December 2009).", "The Court has rejected this approach as being excessively formalistic, because the absence of legislation on prisoners’ attendance at hearings cannot be interpreted as sufficient grounds for depriving them of the right to appear (see Gryaznov v. Russia, no. 19673/03, § 50, 12 June 2012). Contrary to the Government’s claim that the applicants could have effectively presented their cases to the courts because they had all been duly informed of the hearings, merely informing the applicants of the appeal hearing dates was clearly insufficient in a situation where the current state of the domestic law in reality prevented them from attending. 20. The Government also submitted that the nature of the legal disputes did not require the applicants’ personal presence at the appellate hearings, and invited the Court to examine whether or not the applicant’s presence was necessary in each case.", "However, the Court cannot substitute its own assessment for the decisions of the domestic courts, which have the advantage of possessing direct knowledge of the situation and are better placed to determine the nature of each claim and the underlying legal interests (see Lagardère v. France, no. 18851/07, § 42, 12 April 2012). In the present cases the appeal courts did not verify whether the nature of the civil disputes required the applicants’ personal testimony and whether their attendance was essential to ensure the overall fairness of the proceedings. As it happened, the appeal courts denied the applicants the opportunity to attend the hearings, irrespective of the subject matter of the proceedings, and did not apprise them of that decision sufficiently in advance (see Gryaznov, cited above, § 48, and Khuzhin and Others v. Russia, no. 13470/02, § 107, 23 October 2008).", "21. The Court lastly observes that the applicants’ effective participation in the appeal hearings could have been ensured by making procedural arrangements such as, for example, using video link facilities or conducting an off-site hearing (see Shilbergs, cited above, § 107, and Sokur v. Russia, no. 23243/03, § 36, 15 October 2009). The appeal courts did not consider those options at all, and embarked on hearing the cases on the merits without informing the applicants about possible ways to make up for their absence from the courtroom. As a result, the applicants were unable to decide on further courses of action for the defence of their rights and were deprived of an opportunity to present their cases effectively before the appeal courts, in breach of Article 6 of the Convention.", "22. Having regard to its previous case-law and the circumstances of the present case, the Court finds that by denying the applicants the opportunity to be present at the appeal hearings in civil proceedings to which they were parties on the sole grounds of deficiencies in the domestic law, and by failing to consider appropriate procedural arrangements enabling the applicants to be heard, the domestic courts failed to meet their obligation to ensure respect for the principle of a fair trial enshrined in Article 6 of the Convention. 23. There has accordingly been a violation of Article 6 § 1 of the Convention. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 24. The Court has also examined the other complaints submitted by the applicants. However, having regard to all the material in its possession and in so far as those complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 26. The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage. The Government considered their claims to be excessive.", "27. The Court does not discern any causal link between the violation found under Article 6 of the Convention and the pecuniary damage alleged by some of the applicants; it therefore rejects these claims. On the other hand, it awards 1,500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable, to each of the applicants. 28. The Court holds that when an applicant has suffered an infringement of his right to a fair hearing guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded.", "The most appropriate form of redress would, in principle, be the possibility for the applicant to request reopening of the proceedings. In the recent case of Bochan v. Ukraine (no. 2) (no. 22251/08, ECHR 2015), the Grand Chamber laid down the principles applicable to the reopening of terminated civil proceedings on the basis of the Court’s judgment (further case references, in brackets, omitted): “57. ... the Court would reiterate that it is for the Contracting States to decide how best to implement the Court’s judgments without unduly upsetting the principles of res iudicata or legal certainty in civil litigation, in particular where such litigation concerns third parties with their own legitimate interests to be protected.", "Furthermore, even where a Contracting State provides for the possibility of requesting a reopening of terminated judicial proceedings on the basis of a judgment of the Court, it is for the domestic authorities to provide for a procedure to deal with such requests and to set out criteria for determining whether the requested reopening is called for in a particular case. There is no uniform approach among the Contracting States as to the possibility of seeking reopening of terminated civil proceedings following a finding of a violation by this Court or as to the modalities of implementation of existing reopening mechanisms ... 58. However, the foregoing considerations should not detract from the importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place which allow a case to be revisited in the light of a finding that Article 6’s safeguards of a fair trial have been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments as governed by Article 46 of the Convention and their availability demonstrates a Contracting State’s commitment to the Convention and to the Court’s case-law (...). The Court recalls in this connection Recommendation No.", "R (2000) 2 adopted by the Committee of Ministers, in which the States Parties to the Convention are called upon to ensure that there are adequate possibilities of reopening proceedings at domestic level where the Court has found a violation of the Convention (...). It reaffirms its view that such measures may represent the most efficient, if not the only, means of achieving restitutio in integrum (...).” 29. In this connection, the Court reiterates that in Russia a finding by the Court of a violation of the Convention or its Protocols is a ground for reopening civil proceedings under Article 392 §§ 2(2) and 4(4) of the Code of Civil Procedure and for reviewing the domestic judgments in the light of the Convention principles established by the Court (see Davydov v. Russia, no. 18967/07, §§ 10-15, 30 October 2014). B.", "Costs and expenses 30. Mr Davydov claimed approximately EUR 760 in legal costs but did not submit any supporting documents. Mr Bogatyrev sought reimbursement of EUR 2,250, representing legal fees and postal expenses. Mr Pflyaum and Mr Starodubtsev claimed EUR 2,200 each for the work of their representative. Mr Shavayev’s claim in respect of legal fees and postal expenses amounted to EUR 3,413.", "The applicants Mr Barkov, Mr Fedchenko, Mr Baban and Mr Yakovlev did not make a claim for costs or expenses. 31. The Government contested the claims as excessive and unsubstantiated. 32. 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.", "Furthermore, costs and expenses are only recoverable in so far as they relate to the violation found (see, among many other authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 115, ECHR 2009). In the present cases, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sums set out in Annex II, plus any tax that may be chargeable to the applicants, payable into the bank accounts of the applicants’ representatives. [1] C. Default interest 33. 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.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaint concerning the unfairness of the civil proceedings admissible and the remainder of the applications inadmissible; 3. Holds that there has been a violation of Article 6 of the Convention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts listed in Appendix II, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on such amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 4.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelena JäderblomDeputy RegistrarPresident Appendix I. Facts Application number and applicant’s name Date of intro-duction Name of the court and date of the final decision in the civil proceedings concerned 38054/05 Aleksandr Gennadyevich Barkov 23/09/2005 Krasnodar Regional Court, 31 March 2005 38092/05 Oleg Vladimirovich Fedchenko 01/08/2005 Kstovo Town Court, 27 June 2005 2178/07 Vladimir Vitalyevich Davydov 01/11/2006 Perm Regional Court, 4 May 2006 21770/07 Danila Aleksandrovich Baban 28/02/2007 Chelyabinsk Regional Court, 23 January 2007 4708/09 Vasily Arkadyevich Bogatyrev 15/10/2008 Krasnoyarsk Regional Court, 1) 3 September 2008; 2) 2 June 2008; 3) 9 June 2008 46303/10 Nikolay Nikolayevich Pflyaum 09/07/2010 Supreme Court of the Khakassiya Republic, 17 June 2010 70688/10 Murat Ismailovich Shavayev 11/05/2010 Moscow Regional Court, 11 February 2010 30537/11 Vyacheslav Nikolayevich Starodubtsev 14/04/2011 Kaliningrad Regional Court, 2 February 2011 43594/11 Andrey Nikolayevich Yakovlev 18/04/2011 Sverdlovskiy Regional Court, 20 January 2011 Appendix II. Awards made by the Court under Article 41 of the Convention Application number and applicant’s name Represented by Award in respect of non-pecuniary damage Award in respect of costs and expenses[2] payable into the representatives’ accounts 38054/05 Aleksandr Gennadyevich Barkov EUR 1,500 38092/05 Oleg Vladimirovich Fedchenko O. Druzhkova EUR 1,500 2178/07 Vladimir Vitalyevich Davydov EUR 1,500 21770/07 Danila Aleksandrovich Baban EUR 1,500 4708/09 Vasily Arkadyevich Bogatyrev E. Markov EUR 1,500 EUR 850 46303/10 Nikolay Nikolayevich Pflyaum E. Markov EUR 1,500 EUR 850 70688/10 Murat Ismailovich Shavayev F. Tishayev EUR 1,500 EUR 850 30537/11 Vyacheslav Nikolayevich Starodubtsev E. Markov EUR 1,500 EUR 850 43594/11 Andrey Nikolayevich Yakovlev EUR 1,500 [1]1.", "Rectified on 5 September 2016: the text “payable into the bank accounts of the applicants’ representatives” added. [2]1. Rectified on 5 September 2016: the text “payable into the representatives’ accounts” added." ]

[ "FIFTH SECTION CASE OF SHULGA v. UKRAINE (Application no. 16652/04) JUDGMENT STRASBOURG 2 December 2010 This judgment is final but it may be subject to editorial revision. In the case of Shulga v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mark Villiger, President,Isabelle Berro-Lefèvre,Ganna Yudkivska, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 9 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16652/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Anna Ivanovna Shulga (“the applicant”), on 7 April 2004.", "2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 2 March 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no.", "14, the application was allocated to a Committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1942 and lives in the village of Volodarske, Donetsk Region, Ukraine. A.", "First set of proceedings 5. On 24 February 1998 the Novogrod Court ordered the State mine, “Rossiya”, to pay the applicant’s husband 2,000 Ukrainian hryvnias (UAH, about USD 1,000) in compensation for non-pecuniary damage caused to him as a result of a work-related accident. On 12 March 1998 the court sent the enforcement writ in respect of that judgment to the State Bailiffs’ Service. Later, the applicant and her husband appealed against that judgment under the extraordinary procedure. However, their efforts were unsuccessful.", "6. The applicant’s husband died on 14 January 2003. According to the applicant’s submissions, her daughter received the award under the judgment on an unspecified date in 2003 and then transferred the money to the applicant. In 2006 the applicant lodged several requests with the Bailiffs’ Service and the Novogorod Court requesting information about the enforcement proceedings. However, her efforts were unsuccessful.", "In their observations, the Government provided no information about the date of the enforcement of the judgment in question either. B. Second set of proceedings 7. In November 2003 the applicant instituted proceedings against the Novogrod Department of the State Pension Fund in the Novogrod Court, seeking recalculation of her pension. On 29 March 2004 the court found against the applicant.", "On 10 June 2004 the Donetsk Regional Court of Appeal upheld this judgment. In July 2004 the applicant lodged an appeal in cassation. On 19 October 2006 the Higher Administrative Court upheld the decisions of the lower courts. C. Third set of proceedings 8. On 10 November 2003 the applicant instituted proceedings against the State Insurance Fund for Work-Related Accidents and Diseases in the Novogrod Court, alleging that her husband had died as a result of a work-related disease.", "She claimed compensation for the damage caused to her as a result of her husband’s death. On 27 October 2004 the court found against the applicant. On 24 January 2005 the Donetsk Regional Court of Appeal upheld this judgment. The applicant lodged an appeal in cassation on 23 February 2005. On 4 May 2007 the Supreme Court sent the applicant’s appeal in cassation to the Kyiv City Court of Appeal for consideration.", "On 30 October 2007 the latter, acting in its cassation jurisdiction, upheld the decisions of the lower courts. II. RELEVANT DOMESTIC LAW 9. The relevant domestic law concerning the enforcement of the judgments is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).", "10. On 22 February 2007 the Law on Amendments to the Judicial System of Ukraine was enacted. The amendments provided, inter alia, that cassation appeals in civil cases pending before the Supreme Court on 1 January 2007, were to be transferred for consideration to the panel of judges of the respective courts of appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 11.", "The applicant complained about the non-enforcement of the judgment given in her husband’s favour. She relied on Article 1 of Protocol No. 1 to the Convention, which provides as follows: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...” A. Admissibility 12. The Government submitted that the applicant’s complaint under Article 1 of Protocol No. 1 should be declared inadmissible since no complaint about non-enforcement had been raised under Article 6 § 1 of the Convention. They also maintained that neither the applicant nor her husband had submitted the enforcement writ to the State Bailiffs’ Service. 13.", "The applicant disagreed. 14. Referring to its case-law, the Court notes that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III, and Jasiÿnienÿ v. Lithuania, no.", "41510/98, § 45, 6 March 2003). As regards the Government’s objection that the applicant had failed to resubmit the enforcement writ, the Court notes that in the instant case the applicant’s husband had obtained a final and enforceable judgment against the State mine. The Court further reiterates that it is inappropriate to require an individual who has obtained a judgment against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction (see Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007 and the case-law referred to therein). Therefore, the Court dismisses the Government’s objections.", "15. The Court notes that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 16. The Government made no observations on the merits of the complaint. 17. The applicant maintained her complaint. 18.", "The Court observes that, according to the applicant’s statement, the judgment of 24 February 1998 was enforced only in 2003. 19. The Court has frequently found violations of Article 1 of Protocol No. 1 to the Convention in cases raising similar issues to the ones in the present case (see Lopatyuk and Others v. Ukraine, nos. 903/05 and foll., § 22, 17 January 2008).", "20. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. 21. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained that the length of the third set of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. Admissibility 23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 24. The Government contested the applicant’s complaint. In particular, they maintained that the lengthy consideration of the applicant’s cassation appeal was caused as a result of the Supreme Court being overloaded.", "They further submitted that the Law of 22 February 2007 had been enacted in order to resolve that problem. 25. The applicant disagreed. 26. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 27. The period to be taken into consideration in the present case began on 10 November 2003 and ended on 30 October 2007. The proceedings thus lasted almost four years at three levels of jurisdiction. 28.", "The Court notes that the major delay in the proceedings at issue was caused as a result of the applicant’s appeal in cassation not being considered in good time. The Court reiterates that it is the role of the domestic courts to manage their proceedings so that they are expeditious and effective. However, in the Court’s opinion the national courts did not act with due diligence. 29. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, mutatis mutandis, Doğru Avşar v. Turkey, no.", "14310/05, § 8, 12 January 2010 and Frydlender, § 46, cited above). 30. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 31. The applicant complained under Article 6 § 1 of the Convention of the unfairness and length of the proceedings. In particular, she alleged that the judges sitting in her and her husband’s cases lacked impartiality and had not been independent. She further complained under Article 6 § 1 of the lengthy non-execution of the judgment given in her husband’s favour.", "Relying on Article 1 of Protocol No. 1, she complained about the outcome of the proceedings in her and her husband’s cases. Lastly, she invoked Articles 13 and 14 of the Convention referring to the facts of the case. 32. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they did do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage 33. The applicant claimed 7,196 euros (EUR) in compensation for pecuniary damage and EUR 4,000 in respect of non-pecuniary damage sustained by her.", "34. The Government contested these claims. 35. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 36.", "The Court further takes the view that the applicant has suffered non-pecuniary damage. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards her EUR 2,000 in that respect. B. Costs and expenses 37. The applicant claimed EUR 80 for costs and expenses.", "However, she produced postal receipts for mailing correspondence to the Court amounting to UAH 223 (about EUR 23). 38. The Government left the matter to the Court’s discretion. 39. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 23 under this head. C. Default interest 40. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 of the Convention concerning the excessive length of the third set of proceedings and the complaint under Article 1 of Protocol No.", "1 of the lengthy non-enforcement of the judgment admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the third set of proceedings; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, as well as EUR 23 (twenty-three euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 2 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsMark VilligerDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF CROWTHER v. THE UNITED KINGDOM (Application no. 53741/00) JUDGMENT STRASBOURG 1 February 2005 FINAL 06/07/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Crowther v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: MrJ. Casadevall, President,SirNicolas Bratza,MrM.", "Pellonpää,MrR. Maruste,MrS. Pavlovschi,MrJ. Borrego Borrego,MrJ. Šikuta, judges,and Mr M. O'Boyle, Section Registrar, Having deliberated in private on 11 January 2005, Delivers the following judgment, which was adopted on the above‑mentioned date: PROCEDURE 1.", "The case originated in an application (no. 53741/00) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Stephen Alexander Crowther (“the applicant”), on 9 February 1999. 2. The applicant was represented by Mr P.A. Kealey, a lawyer practising in Londonderry.", "The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, Foreign and Commonwealth Office. 3. The applicant alleged, in particular, that the criminal proceedings against him had not been determined within a reasonable time. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).", "Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5. By a decision of 8 July 2003, the Court declared the application partly admissible. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine). 6.", "On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1946 and lives in East Sussex.", "8. On 17 May 1990 the applicant was arrested, questioned at a police station in connection with an alleged importation of drugs, then refused bail and remanded in custody. On 18 December 1990, after a week-long jury trial, he was convicted of conspiracy to import a controlled drug and on 21 March 1991 he was sentenced to six years' imprisonment. On the same date, a confiscation order in the sum of GBP 22,000 was imposed, with a term of 18 months' imprisonment to be served consecutively to his main sentence if he failed to make the payment by 21 March 1992. 9.", "At the time of the applicant's conviction Her Majesty's Customs and Excise (henceforth, “Customs”) were in possession of a Rolex watch and GBP 2,600 belonging to the applicant. According to the Government, the applicant was informed by a letter dated 16 May 1991 that the order had been registered with Chichester Magistrates' Court, but the applicant denies ever having received such a letter. 10. On 30 September 1991 Customs wrote to the solicitors who had acted for the applicant at trial and asked how and when he intended to pay the sum ordered. According to the applicant, the solicitors, who had ceased to act for him in May 1991, never informed him of this letter.", "They wrote to Customs on 7 November 1991 that they had no instructions from the applicant. 11. On 20 March 1992 the Magistrates' Court wrote to Customs to enquire whether action would be taken to enforce the order in default of payment. Customs replied on 23 March 1992 that the sum ordered had not been paid and that they were considering applying for a distress warrant to be issued in respect of the watch and a receiver to be appointed to deal with the applicant's property. 12.", "By a letter dated 8 April 1992, the Magistrates' Court informed Customs that a distress warrant could not be issued. In another letter, dated 12 August 1992, the magistrates sought information from Customs about the appointing of a receiver. Customs replied on 22 October 1992 that the sum ordered had not been paid, but that they had not applied to the High Court to appoint a receiver in the attempt to identify any realisable assets held by the applicant and that they were awaiting further instructions from their Asset Forfeiture Unit. 13. The applicant was released from prison in May 1994.", "He had not paid the money due under the confiscation order, but the order had not been enforced. 14. By a letter dated 24 October 1995 Customs contacted the Magistrates' Court to discover whether payment had been made. The court replied on 27 October 1995 that it had not. On 23 January 1996 Customs contacted the applicant's former solicitors to inform them that they intended to enforce payment of the order.", "15. On 29 February 1996 Customs asked the court to issue a distress warrant in respect of the watch. This was issued in March 1996 and an executed copy of the warrant was sent to Customs in May 1996. 16. On 25 June 1996 a warrant was issued for the applicant's arrest to bring him to court for a means inquiry to take place in respect of the sum of GBP 17,670 outstanding on the order.", "The inquiry took place on 10 July 1996. The applicant attended but was not represented. The proceedings were adjourned at the applicant's request to allow him to seek legal aid and a Certificate of Inadequacy (which would dispense him from the obligation to pay the order). According to the Government, the proceedings were adjourned a further twelve times over the following seventeen months at the applicant's request. The applicant denies requesting so many adjournments.", "17. On 18 November 1997 the High Court dismissed the applicant's application for a Certificate of Inadequacy. On 10 December 1997 the Magistrates' Court ordered that proceedings to enforce the confiscation order should take place. The proceedings were subsequently adjourned several more times, but the reason for the adjournments is not clear. 18.", "On 13 May 1998 the case was listed for 3 June 1998, and on the latter date the applicant was committed to prison for 15 months for non-payment of the sum outstanding. 19. On 7 August 1998 the applicant was granted leave by the High Court to apply for judicial review of the magistrates' decision. On 14 October 1998 the High Court refused his application for judicial review, holding that there was no reason to construe the word “consecutive” in the confiscation order in such a strict manner as to mean “in unbroken succession to the time served under the original order”. Lord Justice Brooke in the High Court described the delay on the part of the enforcement authorities between October 1992 and January 1996 in enforcing the order as “wholly unexplained”, and Mr Justice Sedley observed that the “Customs and Excise's inertia between March 1992 and January 1996 was both inexcusable and, given that somebody's liberty was involved, unconscionable”.", "However, the High Court held that, as a matter of English law, once the confiscation order had been made the onus was on the applicant to pay, and “any continuing lapse of time is then in the eye of the law a product of the failure to pay, not of the failure to enforce”. On 19 October 1998 the High Court refused leave to appeal to the House of Lords. II. RELEVANT DOMESTIC LAW 20. In Leonard Lloyd v. Bow Street Magistrates' Court [2003] EWHC 2294, the High Court considered, subsequent to the incorporation of the Convention into domestic law, whether a defendant's right under Article 6 § 1 to have a criminal charge determined within a reasonable time was capable of being violated where delay occurred in the institution or prosecution of proceedings to commit a defendant to prison in default of payment of a sum due under a confiscation order.", "The court held that Article 6 § 1 applied not only to the confiscation proceedings up to the making of the confiscation order, but also to any subsequent proceedings to enforce the order by the issue of a warrant of commitment to prison; such proceedings were part and parcel of the confiscation proceedings, which in turn were part and parcel of the original criminal proceedings. It rejected the argument that, because the defendant was under a continuing duty to satisfy the confiscation order, he or she had no right to have the enforcement proceedings completed within a reasonable time, and held that the reasonable time guarantee, together with all the other Article 6 § 1 rights, applied to all aspects of confiscation proceedings. As a remedy, the High Court stayed the proceedings as an abuse of process. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 21.", "The applicant complained that the confiscation procedure took an unreasonably long time, contrary to Article 6 § 1, which states: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 22. The Government submitted that there had been no violation of Article 6 § 1. The criminal proceedings in question had commenced, at the earliest, in October 1995, when the Magistrates' Court informed Customs that the confiscation order had not been satisfied, because it could not be said that the applicant was “charged with a criminal offence” until steps had been taken to enforce the order. The relevant period came to an end on 3 June 1998 when the applicant was committed to prison for non-payment of the order. The delay between June 1996 and June 1998 was caused by the applicant's attempts to seek a Certificate of Inadequacy and his requests for adjournment of the enforcement proceedings.", "In the alternative, the Government argued that, even if the Court were to find that the reasonable time requirement began to run from the time that enforcement proceedings could have been brought, namely 22 March 1992, the delay still did not violate Article 6 § 1, because throughout the relevant period the applicant was under an obligation to pay the amount ordered by the Crown Court. 23. The applicant contended that he was “charged with a criminal offence” from 21 March 1991, when he received the confiscation order, or, if not then, certainly from March 1992 when he defaulted on payment and became liable to be imprisoned. He denied that the delay was his fault. The amount of the confiscation order was wrongly calculated and he was never able to pay it, a fact of which Customs were aware, as evidenced by their failure ever to apply to have a receiver appointed.", "Throughout the enforcement proceedings he remained at a fixed address known to the authorities and attended court whenever required. He did not request frivolous adjournments or attempt to prolong the proceedings unnecessarily. 24. The Court recalls that Article 6 § 1 applies throughout the entirety of proceedings for “the determination of ... any criminal charge”, including proceedings whereby a sentence is fixed (see, for example, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 279, § 69 and Phillips v. the United Kingdom, judgment of 5 July 2001, Reports 2000-VII, § 39). 25.", "It has held that confiscation proceedings of the type brought against the applicant are analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to be imposed on a properly convicted offender (see Phillips, § 34, and Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307-A, p. 13, §§ 27-28). In common with such sentencing procedures, the setting and enforcement of a confiscation order does not involve the bringing of any new criminal charge against the convicted person (Phillips, §§ 34-35). 26. The criminal proceedings in question in the present case commenced, therefore, on 17 May 1990, when the applicant was first arrested and questioned in connection with the drugs charge (see paragraph 8 above).", "They were not determined until 19 October 1998, when he was denied leave to appeal to the House of Lords against the refusal to grant his application for judicial review of the magistrates' decision to commit him to prison for non-payment of the confiscation order. The proceedings lasted, in total, eight years and five months. 27. The reasonableness of the length of proceedings, in criminal as in civil cases, must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, amongst many authorities, Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, § 20, 29 July 2003).", "28. The applicant makes no complaint about the initial pre-trial and trial period, which culminated in the fixing of his sentence and the imposition of the confiscation order on 21 March 1991, and the Court finds no grounds for criticism of the pace of the proceedings until 21 March 1992, when the period allowed to the applicant for the payment of the confiscation order expired. Thereafter, however, a period of four years, three months of almost total inactivity elapsed until Customs took any effective steps to enforce the order, by requesting a warrant for the applicant to be questioned about his financial circumstances. The Court agrees with the assessment of Mr Justice Sedley, that Customs' inertia during this time “was both inexcusable and, given that somebody's liberty was involved, unconscionable” (see paragraph 19 above). 29.", "The fact that throughout this period the applicant was under a duty to pay the sum owing under the confiscation order did not absolve the authorities from ensuring that the proceedings were completed within a reasonable time. Even in respect of civil proceedings, where domestic law or practice requires the parties to take the initiative with regard to the progress of the proceedings, the State is obliged to ensure compliance with the reasonable time guarantee under Article 6 § 1 (see, mutatis mutandis, Price and Lowe, § 23). This principle must apply a fortiori where the State is itself a party to the proceedings and responsible for their prosecution. 30. In conclusion, the Court finds a violation of Article 6 § 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. 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.” 32. The applicant did not submit any claim for just satisfaction, and the Court does not, therefore, make any award in this respect (see Rule 60 §§ 1 and 2 of the Rules of Court). FOR THESE REASONS, THE COURT UNANIMOUSLY Holds that there has been a violation of Article 6 § 1 of the Convention.", "Done in English, and notified in writing on 1 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'BoyleJosep CasadevallRegistrarPresident" ]

[ "FOURTH SECTION CASE OF McCAUGHEY AND OTHERS v. THE UNITED KINGDOM (Application no. 43098/09) JUDGMENT STRASBOURG 16 July 2013 FINAL 16/10/2013 This judgment has become final under Article 44 § 2 of the Convention. In the case of McCaughey and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President,Davíd Thór Björgvinsson,Päivi Hirvelä,George Nicolaou,Zdravka Kalaydjieva,Vincent A. De Gaetano,Paul Mahoney, judges,and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 25 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43098/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Irish nationals, Mrs Brigid McCaughey, Mr Pat Grew and Ms Letitia Quinn (“the first, second and third applicants”), on 29 July 2009. 2. The applicants were represented by Mr F. Shiels, of Madden & Finucane Solicitors, Belfast. The United Kingdom Government (“the Government”) were represented by their Agents, Mr M. Kuzmicki and, latterly, by Ms J. Neenan, of the Foreign and Commonwealth Office. 3.", "The applicants mainly complained under Article 2 regarding the shooting of their relatives by the security forces and, notably, that there had been an unreasonable use of lethal force and a failure to properly investigate the relevant operation. 4. On 1 February 2011 the application was communicated to the Government. The Court also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5.", "On 2 June 2011 the Government requested the Court to strike out the application in the light of a recent judgment (In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) [2011] UKSC 20). The applicants submitted observations on this request. On 6 September 2011 the Court rejected the Government’s request and the parties’ observations on the admissibility and merits were then requested and submitted. In July 2012 the Court received another round of observations from each party. 6.", "On 13 April 2011 the Irish Government declined to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court). Further to leave accorded by the President (Article 36 § 2 of the Convention and Rule 44 § 3), third-party comments were received from the Committee on the Administration of Justice, the Equality and Human Rights Commission and the Northern Ireland Human Rights Commission. THE FACTS THE CIRCUMSTANCES OF THE CASE 7. The first applicant, Mrs Brigid McCaughey, is the mother of Mr Martin McCaughey. She was born in 1934.", "The second and third applicants are the father and daughter of Mr Desmond Grew. They were born in 1923 and 1990, respectively. All the applicants live in County Tyrone. The case concerns the shooting of Martin McCaughey and Desmond Grew by security forces in 1990 in Northern Ireland. A.", "The circumstances of the case 1. The shootings 8. On 9 October 1990 Martin McCaughey and Desmond Grew were shot and killed outside a shed on a farm near Loughgall by soldiers from a specialist unit of the British Army. The autopsy of Martin McCaughey described the cause of death as “laceration of the brain due to bullet wounds to the head”, noting that he had been struck by approximately ten high-velocity bullets in all. The autopsy of Desmond Grew described the cause of death as “multiple injuries due to multiple high-velocity bullet wounds of trunk and limbs”, noting that there were approximately forty-eight wounds made by bullets entering and exiting his body.", "No shots were fired by the deceased. These shootings were two of several which took place around that time and which gave rise to allegations of a shoot-to-kill policy by the security forces, including by that specialist unit, in Northern Ireland. 9. The shed had been under surveillance as a suspected arms dump of the Irish Republican Army (IRA). The applicants maintained that the Royal Ulster Constabulary (RUC) had intelligence to the effect that the deceased would collect arms at the shed.", "The RUC Tasking and Coordination group (“the TCG”) assigned the specialist military unit to the mission given that unit’s specific training and firepower. 10. On 11 October 1990 the IRA stated publicly that the deceased were IRA volunteers on active service at the time of their deaths. 11. The first applicant claimed that her family learned about Mr McCaughey’s death from the media and that a RUC officer rang the deceased’s family home, identified himself and taunted the deceased’s brother.", "The RUC formally advised the Grew family of Desmond Grew’s death. 2. The investigation by the RUC 12. The RUC conducted an investigation into the deaths, beginning with interviews with the soldiers involved in the operation. 13.", "The statements of Soldiers A-H, later disclosed to the applicants by the Police Service Northern Ireland (the PSNI replaced the RUC in 2001), stated as follows. Soldier H, the Captain with responsibility for the military unit, received information and briefed Soldiers A, B, C, D, E and F to observe the shed for any terrorist activity and to arrest any persons found to be so engaged. Soldier A was the team leader of the unit with command of the soldiers on the ground. Soldier H was in radio contact with the soldiers on the ground and, on receiving a report of the shooting, he dispatched Soldiers G and I to the scene. The scene was handed over at approximately 12.30 to the RUC and Soldiers A-I returned to base.", "Later that day (10 October 1990), members of the RUC questioned the soldiers, who were accompanied by Soldier L, from Army Legal Services. Soldier A was the first to fire a shot and he fired twenty rounds. Soldier B fired seventeen rounds, Soldier C fired nineteen rounds and Soldier D fired sixteen rounds, the last two of which were directed at Mr Grew while he was on the ground as the soldier believed Mr Grew had attempted to grab his gun. Soldiers E and F had been close by and did not discharge their weapons. Soldiers A-F believed that they had been under fire, although no shots had been fired at them.", "Soldier J (involved in pre-deployment training for such specialist military units) and Soldier K (the officer commanding of the unit) were involved in the planning and control of the operation. 3. The Director of Public Prosecutions (“the DPP”) 14. In February 1991 the DPP received the investigation file. Between April 1991 and September 1992 the DPP issued eight directions for, inter alia, further investigative steps.", "On 2 April 1993 the DPP issued a direction of no prosecution (nolle prosequi) in respect of the soldiers involved in the shooting. The decision was not notified directly to the families. 4. Pre-inquest proceedings including judicial review 15. In 1994 and 1995 the RUC provided certain papers to the coroner which did not include the statements of Soldiers A-I.", "On 23 December 1997 the coroner advised the applicants that he had received a file from the DPP. This was the first formal contact by the authorities with the applicants. 16. On 23 April 2002 the coroner wrote to the PSNI requesting statements from the soldiers involved in the shooting. The PSNI provided the statements but refused to provide the report of the RUC Investigating Office, the DPP’s decision or relevant un-redacted intelligence reports.", "17. On 11 June 2002 the applicants wrote to the coroner asking when the inquest would be listed and requesting pre-inquest disclosure. On the same date, they wrote to the PSNI seeking disclosure of all documentation relating to the deaths pursuant to Article 2 of the Convention and section 8 of the Coroner’s Act (Northern Ireland) 1959 (“the 1959 Act”). 18. On 3 December 2002 the coroner disclosed to the applicants the depositions relating to the inquest.", "Since statements and documents supplied by the PSNI remained the property of the PSNI, such material could not be disclosed by the coroner to the applicants. (a) First judicial review proceedings 19. Following lengthy correspondence between the applicants, the coroner and the PSNI about pre-inquest disclosure, in October 2002 the first applicant’s husband (now deceased) and the second applicant issued judicial review proceedings against the coroner and the PSNI, challenging the latter’s retention of relevant documentation. 20. On 14 February 2003 leave to apply for judicial review was granted.", "21. On 21 February 2003 the PSNI provided the applicants with the documents supplied by it to the coroner (see paragraph 16 above). This included the soldiers’ statements and two lists of material items of evidence, which lists indicated that certain items could not be located/had deteriorated – there was a reference to a stench on opening the main bag of materials. 22. On 20 January 2004 the High Court (McCaughey and Another, Re Application for Judicial Review [2004] NIQB 2) found that the PSNI was under a duty by virtue of section 8 of the 1959 Act and Article 2 of the Convention to provide the coroner with some of the withheld documents and that the inquest had been unduly delayed in breach of Article 2 of the Convention.", "On 14 January 2005 the Court of Appeal (Police Service of Northern Ireland v. McCaughey and Grew [2005] NICA 1, [2005] NI 344) allowed the appeal of the PSNI. Section 8 of the 1959 Act obliged the PSNI to provide the coroner with the information retained when it notified the coroner of the death but the PSNI had no such duty under Article 2 since the Human Rights Act 1998 (“the HRA”) did not apply to a death occurring before its entry into force in 2000 (In re McKerr [2004] UKHL 12, the appellant was the applicant in McKerr v. the United Kingdom, no. 28883/95, ECHR 2001‑III). 23. The first applicant’s husband appealed.", "On 28 March 2007 the House of Lords delivered its judgment (Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14): this judgment addressed the similar appeal of Hugh Jordan (the applicant in Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001). It found that the HRA did not apply to a pre-HRA death nor, therefore, to the investigation of any such death. However, section 8 of the 1959 Act plainly required the PSNI to disclose to the coroner such information about the deaths as the PSNI was then or thereafter able to obtain, subject to any relevant privilege or immunity. (b) Subsequent pre-inquest procedures 24.", "In the meantime, the coronial system had been restructured so that a new coroner was to be appointed. 25. In December 2007 the applicants wrote to the senior coroner asking that the inquest be progressed. On 12 February 2008 the coroner’s service responded that the inquest had not yet been allocated to a coroner given workload commitments. However, the senior coroner had written to the PSNI requesting disclosure under section 8 of the 1959 Act.", "26. In July 2008 the applicants again wrote to the senior coroner enquiring about the inquest and pre-inquest disclosure. No response was received. Their further letter of 17 December 2008 to the senior coroner was acknowledged by the coroner’s service. There was no response to their letter of 16 January 2009 to the coroner’s service: they were informally told in February 2009 that a coroner had been appointed.", "27. On 25 June 2009 the applicants sent a letter before action to the coroner’s service about the failure to hold the inquest. On 30 June 2009 the coroner’s service responded stating that the coroner was still awaiting full disclosure from the PSNI which was expected shortly and that the coroner intended to convene a preliminary hearing in September 2009 at which he hoped to be able to set a provisional date for the inquest. 28. In 2009 the Historical Enquiries Team (“the HET”) advised the coroner that they anticipated commencing an investigation into the shootings of the deceased in January 2010.", "By a letter of 26 August 2009, the coroner advised the applicants accordingly and asked whether they would wish the inquest to proceed in advance of the HET investigation. 29. On 4 September 2009 a preliminary inquest hearing was held. The coroner advised that he had received full disclosure from the PSNI. Counsel for the PSNI and the Ministry of Defence (MOD) vouched that this disclosure amounted to full compliance with section 8 of the 1959 Act and that the MOD had no further documentation relating to the incident.", "Counsel for the PSNI was unable to advise the coroner what steps, if any, had been taken to locate certain missing exhibits. The coroner adjourned the hearing to consider the material and a further preliminary hearing was scheduled for 12 October 2009. The coroner asked for written submissions as to whether the inquest should be adjourned pending the HET investigation: the applicants opposed this orally. Finally, while the coroner noted the potential impact of the judgment of this Court in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009) on coronial law and on the inquest, he was bound by current domestic case-law (including In re McKerr, cited above).", "Despite this, he considered that it was feasible to conduct a vigorous, thorough and transparent inquest. 30. On 15 September 2009 the applicants requested the HET to expedite its review and the HET responded that it would conduct an initial assessment and report at the coroner’s hearing of 12 October 2009. 31. At that hearing on 12 October 2009, the applicants argued that it would be premature to adjourn the inquest pending the HET investigation.", "They proposed proceeding on certain preliminary inquest issues (disclosure, remit/scope of the inquest and anonymity/public interest immunity matters): the HET issue could be reviewed when the inquest was listed for hearing. The parties and the coroner agreed. The HET agreed to bring forward the start of their investigation. 32. On 1 December 2009 a further preliminary hearing was held.", "The coroner directed that the applicants be provided with redacted volumes of the documents which had been provided by the PSNI to the coroner. He scheduled hearings on certain questions (anonymity and screening for some witnesses) for January 2010. 33. By letter dated 8 December 2009 the coroner proposed a “preliminary definition” of the scope of the inquest as covering the four basic factual questions – the identity of the deceased, the place of death, the time of death and how the deceased came by their deaths. In relation to how, the coroner stated that he would examine evidence concerning the circumstances in which the deceased came to be at the locus of death, the surveillance operation that culminated in the deaths, with reference, in particular, to the purpose and planning of the operation, the actions and state of knowledge of those involved in the operation, as well as the nature and degree of force used.", "He invited submissions thereon. 34. In December 2009 files of documents were provided to the applicants. A brief preliminary hearing took place on 22 January 2010. On 2 February 2010 the coroner heard oral submissions on the scope of the inquest and reserved his decision.", "While the applicants were satisfied with the coroner’s preliminary definition of scope noted above, the PSNI argued for a conventional pre-HRA inquest so that the verdict on “how” the deceased met their deaths should be limited to the question of “by what means” rather than including “what broad circumstances”. 35. A further preliminary hearing was fixed for September 2010, but did not take place. By letter dated 4 November 2010 the applicants invited the coroner to hold a further preliminary hearing on the questions of disclosure, scope, expert witnesses and site inspection. (c) Second judicial review proceedings 36.", "Following the delivery of the above-cited Šilih judgment, the first and third applicants began judicial review proceedings arguing that their inquest had, consequently, to be Article 2 compliant. 37. On 23 September 2009 the High Court handed down its decision (McCaughey and Quinn’s Application [2009] NIQB 77). Leave to apply for judicial review was granted as regards the delay in holding the inquest but it adjourned that question pending any decision at the coroner’s hearing due on 12 October 2009. Leave was, however, refused as regards the applicants’ submission that the House of Lords’ judgment in McKerr was no longer good law following the above-cited Šilih judgment of this Court.", "38. By a judgment of 26 March 2010, the Court of Appeal (Re McCaughey and Quinn’s Application [2010] NICA 13) granted the applicants leave to apply for judicial review on the two Article 2 grounds not permitted by the High Court but refused those applications on their merits. However, it had a duty under section 3 of the HRA to give effect so far as possible to any relevant legislation compatibly with Convention rights, it was arguable that the Supreme Court could choose to extend Šilih (cited above) to domestic law and therefore leave to appeal to the Supreme Court was granted. 39. In November 2010 the applicants requested the continuation of the preliminary inquest hearings on certain matters including disclosure, remit, site inspection and expert reports.", "While not excluding the possibility, the coroner responded that those matters were preferably examined after the Supreme Court judgment. 40. By a judgment of 18 May 2011, the Supreme Court held by a majority (Lord Rodger of Earlsferry dissenting) that the coroner holding the inquest had to comply with the procedural obligations under Article 2 of the Convention (In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) [2011] UKSC 20). In Šilih (cited above), this Court departed from its earlier case-law finding that, in certain circumstances, Article 2 imposed a “detachable” investigative obligation even when the death had occurred before ratification. Those circumstances included instances where a significant proportion of the procedural steps had taken place after the Convention had come into force.", "Accordingly, the Supreme Court found that, as a matter of international obligation, the present inquest had to comply with Article 2 as far as this was possible under domestic law. Parliament was presumed to have intended that there would be a domestic-law requirement to mirror the international requirement and the HRA which came into effect on 2 October 2000 was to be interpreted by reference to this presumed intention. Any future inquest into a pre-HRA death had to comply with Article 2. 41. In a concurring judgment, Lord Brown relied on statistical information submitted by the coroner’s service in April 2011 about deaths occurring prior to October 2000: there were sixteen outstanding “legacy inquests” involving twenty-six deaths, an additional six incidents involving eight pre‑2000 deaths (which had been referred by the Attorney General to the coroner); and six inquests had not been held into six deaths which took place between 1994 and 2000 (an inquest into a death in 1995 had just closed in February 2011).", "Most cases concerned the use of lethal force by the security forces and some concerned killings attributed to paramilitary forces. (d) Subsequent pre-inquest procedures 42. In response to judgments of this Court (including the above-cited McKerr and Hugh Jordan cases), decisions not to prosecute became amenable to challenge by way of judicial review. The applicants requested reasons for the decision not to prosecute in April 1993. On 25 July 2011 the Acting Deputy DPP provided the following reasons for the 1993 decision not to prosecute: “Having carefully considered all the evidence and information it was concluded that the Test for Prosecution was not met in respect of any soldier for any offence relating to the deaths of Desmond Grew and Martin McCaughey.", "All soldiers had raised the defence of self-defence in opening fire. As you will be aware, where the defence of self-defence is raised the burden of negativing the defence rests on the prosecution and it is for the prosecution to prove to the very high standard required in a criminal trial that the person was not acting in self-defence. It was concluded that the available evidence was not sufficient to do so.” 43. He could not confirm whether the next-of-kin had been informed of the DPP’s earlier decision not to prosecute but, at the time, the practice was that the police would inform relevant persons of a DPP decision. He confirmed that his office had directed that a further report be submitted by the coroner on any relevant matters which might arise at the inquest.", "44. At a preliminary hearing on 17 October 2011, the coroner determined that the inquest would take place in March 2012. He issued directions for the service of the parties’ evidence including ordering the MOD to serve its evidence by 23 December 2011. The coroner selected the jury asking each to notify him if they had any reason to believe they would not be able to consider the evidence impartially. 5.", "Civil proceedings for damages 45. On 11 January 2012 the applicants issued civil proceedings for damages as regards the shootings. That action was timed to begin within three years of the disclosure to the applicants of ballistic and forensic evidence which they considered as supportive of their allegation that the use of lethal force had not been absolutely necessary and that the operation had not been planned so as to minimise recourse to lethal force. 6. Judicial review involving the HET 46.", "On 6 March 2012 the first applicant began judicial review proceedings about the failure by the HET to disclose relevant documents to the coroner disputing, inter alia, the HET’s independence from the military. The HET then issued a preliminary review of the investigation. It found that the deceased were about to embark on a planned provisional IRA operation, it approved the scene examination and the later interviewing of the soldiers and it found the latter to be consistent with the former. Soldier A had been interviewed but he essentially endorsed his earlier statement. On 19 July 2012 the HET indicated that the final report was pending.", "7. The inquest and intervening judicial review actions 47. The inquest opened on 12 March 2012 when the applicants were informed that the HET had deferred its investigation pending the inquest. The inquest lasted twenty-seven days, ending on 2 May 2012. The hearing was public and the applicants were legally represented by counsel and a solicitor.", "48. Oral evidence was heard from twenty-three witnesses including certain RUC and military witnesses involved in matters of training, planning, command, control and supervision relevant to the mission and from RUC officers concerning the post-mission investigation. Three of the four soldiers (A, C and D) who had opened fire gave evidence. Soldier B refused to travel from the Middle East: his statement prepared in 1990 for the police investigation was read to the jury. Expert evidence was heard as to the post-incident investigation.", "Witnesses were cross-examined thoroughly by the applicants. (a) Inquest: the soldiers’ involvement in other lethal-force incidents 49. In October 2011 the applicants had requested the coroner to obtain information about the involvement of Soldiers A-H in other lethal-force incidents in Northern Ireland. 50. At the preliminary hearing of 17 October 2011, it appears the MOD agreed to ask Soldiers A-H about their involvement in other such incidents.", "51. Further statements from Soldiers A, C, D, E and G-L were served on the applicants from 2 February to 5 March 2012. Since most of those statements mentioned involvement in other lethal-force incidents, on 16 February 2012 the applicants requested this information from the coroner. The coroner obtained the parties’ written and oral observations and, on 1 March 2012, he obtained the soldiers’ personnel files as well as MOD information about their participation in other lethal-force incidents. On 8 March 2012 he ruled against the applicants, except in the case of one incident involving Soldier A.", "A statement from Soldier A as regards that incident was provided on 8 March 2012 as was, on application, further information about that other shooting. On 12 March 2012 the High Court (Weatherup J) refused leave to apply for judicial review of the coroner’s ruling of 8 March. It also indicated that, since the inquest had begun after years of waiting, only exceptional circumstances could justify interrupting it and there was nothing exceptional about the application warranting leave at that point. Further to a question to Soldier J about his involvement in other lethal incidents, on 15 March 2012 the coroner ruled out any further questions about the soldiers’ involvement in other lethal-force incidents and he directed the removal of references to such incidents from their statements. 52.", "On 23 March 2012 the coroner excluded reference to the material about Soldier A’s involvement in two other lethal-force incidents and the first applicant applied for leave to bring judicial review proceedings in respect of that exclusion. In the meantime, Soldier A gave evidence at the inquest excluding any reference to his involvement in other lethal-force incidents: the coroner undertook (and the MOD agreed) that Soldier A could be recalled should the result of the pending judicial review action be in the applicants’ favour. On finishing his evidence, the coroner reminded Soldier A that he might be recalled and the latter confirmed that he would be available. On 28 March 2012 the High Court found in favour of the applicants as regards one of the other lethal-force incidents concerning Soldier A. He remained available and could be questioned at the inquest the following day so that any disruption of the inquest would be justified, the issue being so “fundamental” to the character of the inquest as to amount to an exceptional case where judicial review could intervene prior to the conclusion of the inquest.", "53. On 29 March 2012 the applicants raised Soldier A’s recall with the coroner: the MOD said he would be available, after his holiday, for the week commencing 9 April 2012. On 2 April 2012 the MOD advised the coroner that Soldier A was out of the jurisdiction and, apart from a holiday in the near future, no difficulty was raised as to his attendance. Soldier A’s attendance was revisited at length by the coroner on 4 April 2012: Soldier A would have separate legal representation and the future inquest hearing dates were fixed around juror commitment and Soldier A’s holiday plans (by then announced). On 6 April 2012 the coroner directed that Soldier A make himself available to the inquest on 11 April 2012.", "54. On 11 April 2012 Soldier A did not appear: his solicitors sent an e‑mail to the effect that he was, in fact, beginning three weeks’ holiday that day, that he would attend thereafter but that he wished to take legal advice beforehand. On 12 April 2012 submissions were heard on this issue. In the meantime and subject to his later attending, documents concerning Soldier A’s involvement in other lethal incidents were read to the jury. On 13 April 2012 the coroner asked the MOD to address conflicting information about Soldier A’s availability.", "On 16 and 18 April 2012 the applicants requested the coroner to obtain a subpoena. Soldier A’s solicitors said they had no instructions but were forwarding correspondence to him. Having invited, received and considered further submissions from the applicants as regards the subpoena request, on 23 April 2012 the coroner ruled that he would conclude the inquest without Soldier A’s attendance since there was more value in completing the inquest than in speculatively trying to seek his attendance on the basis of “some open-ended review of his availability”. He directed the jury as regards Soldier A’s absence. (b) Inquest: question from the jury 55.", "During their deliberations, the jury sent a question to the coroner asking if a shot fired into a corpse could legally be defined as excessive force. This concerned the additional two shots directed at Mr Grew while he was on the ground: the pathologists had not agreed on whether he was already dead when those shots were fired. The coroner indicated that, strictly speaking, the interest of the inquest evaporated once the person was dead. The applicants unsuccessfully challenged this direction as too narrow since, notably, this incident was pertinent to the individual soldier’s conduct and as to “how” the deceased died. (c) Inquest: discharge of a juror 56.", "Between 20 March and 26 April 2012 a number of applications were made to the coroner about a juror who had allegedly fallen asleep on certain occasions and acted in a manner hostile to the next-of-kin. The coroner rejected the applicants’ requests to discharge the juror, indicating that he would keep the juror under scrutiny and the matter under review. Further to the same juror allegedly spitting in the street near family members of one of the deceased, the coroner refused a further application to discharge the juror on 27 April 2012 but he warned the jury twice about their joint responsibility for the integrity of the process, indicating on the second occasion that he should be informed if any juror had any concern about bias on the part of a fellow juror. No complaint was made. Throughout the inquest, the coroner emphasised the need for the jury to rely only on the evidence and to consider it impartially.", "In the final days and in response to the applicants’ request, he again emphasised that any concern of a juror about the jury or another juror should be brought to his attention. No jury comment was received. 57. On 27 April 2012 the High Court (Stephens J) refused leave to apply for judicial review of this last decision of the coroner. There was no need to review the coroner’s factual assessments.", "Even if the High Court was wrong in that analysis, exceptional circumstances would be required to postpone the inquest after years of waiting and the removal of one juror at that point would present more difficulties than could be justified (especially as the jury had begun to deliberate). In any event, there would be a remedy available to the applicants if the jury decision went against their interests. (d) Inquest: the jury verdict 58. At the conclusion of the evidence, the coroner obtained the parties’ written and oral submissions and then fixed the questions for the jury to answer with its verdict. The applicants, the PSNI and the MOD made closing submissions to the jury on those questions, the applicants notably suggesting that the questions did not reflect the correct absolute-necessity test and did not allow the jury to reach a verdict capable of determining whether the force used was justified.", "The coroner summed up to the jury for approximately four hours. 59. On 2 May 2012 the jury rendered its verdict to the effect that the deceased died of multiple injuries and multiple high-velocity bullet wounds. 60. The jury considered that the purpose of the operation was to continue surveillance, to arrest anyone involved in terrorist activity and to place a camera in the area of the shed.", "The soldiers opened fire and shot the deceased in the belief that their position was compromised and that their lives were in danger as, possibly alerted to the soldiers’ radio “tones”, the deceased were approaching the soldiers with their guns at the ready. The soldiers continued firing believing that their own rounds were incoming fire. Soldier A opened fire (believing that their position had been compromised and their lives were in danger) and Soldiers B, C and D followed and continued firing until they believed the threat was neutralised, in which circumstances the jury believed the soldiers had used reasonable force. Soldier D fired two bullets at close quarters into Mr Grew on the ground as he perceived Mr Grew as a threat and Soldier D’s reaction was reasonable. As to whether the jury considered there was another reasonable course of action, the jury was not “unanimous on the balance of probabilities” as to whether there was an opportunity to arrest prior to the soldiers feeling compromised.", "In answer, therefore, to the question about whether the operation was conducted in such a way as to minimise to the greatest extent possible any recourse to lethal force, the jury was not “unanimous in regard to the possibility of an arrest option”. 61. As to whether any aspect of the training of, or planning by, any soldier could account for the deaths, the jury found that the soldiers fired, in accordance with their training, at the “central mass” and continued to do so until the threat was neutralised but that, otherwise, there was “insufficient evidence of planning and intelligence available to give further findings”. Other than noting that Desmond Grew received two bullets on the ground near the shed, it was “not possible to reach any further conclusions concerning the force used against Mr Grew”. 62.", "As to whether the operation was planned, controlled and supervised by the RUC and the military so as to minimise to the greatest extent possible any recourse to lethal force, the jury responded as follows: “Planning – In planning the operation, TCG tasked a specialist military unit as the most appropriate unit to minimise danger to RUC members and soldiers involved in the surveillance operation and the placing of a camera. – The placing of the camera was in itself planned to minimise the risk to those on surveillance. – Given the level of risk involved in the surveillance operation, the specialist military unit were commissioned due to their particular training and firepower which was superior to that of the RUCs. – There was no definitive information or intelligence available to minimise any recourse to lethal force. Control - Each individual involved had specific roles and there was no ambiguity — clear lines of command.", "- Clear roles for everyone involved and TCG were the only ones who could call off the operation. Supervision - Soldier H had overall control of the operation but Soldier A was the team leader who was in command of the soldiers on the ground and therefore in the best position to make decisions and minimise to the greatest extent possible any recourse to lethal force.” 63. The jury highlighted, as important contributing factors, the history of incidents directed towards security forces in the area, the nature of terrorism in Northern Ireland at the time, as well as the heightened state of the minds of the soldiers involved in the operation. 8. Judicial review proceedings after the inquest 64.", "On 29 June 2012 the first applicant requested leave to apply for judicial review of the inquest requesting, inter alia, the quashing of the verdict and a new inquest on the basis that the inquest was not compliant with the procedural requirements of Article 2 of the Convention. 65. She contested the coroner’s decisions not to admit probative material concerning the involvement of the soldiers in other lethal-force incidents in Northern Ireland including his refusal to disclose relevant material, his decision not to allow the next-of-kin to question military witnesses about such incidents and his ruling that references to such incidents be edited from the soldiers’ statements. These decisions deprived the applicants of effective and full participation in the inquest; meant that there was insufficient public scrutiny of the inquest; and deprived the jury of probative evidence in relation to whether the specialist military unit was involved in a shoot-to-kill policy, whether that unit was therefore more likely to have recourse to unjustified lethal or excessive force and whether the individual soldier’s use of lethal force was justified in the circumstances. 66.", "She also argued that the coroner failed to take adequate steps to ensure Soldier A’s attendance despite the prior High Court judgment and that this deficiency had had the same negative consequences for the applicants’ participation in the inquest, public scrutiny of the inquest and the availability of probative material for the jury. She maintained that the questions put by the coroner to the jury failed to ensure that the jury could properly address “how” and “in what circumstances” the deceased came by their deaths. She also argued that the coroner misdirected the jury on the soldiers’ “state of belief” when they opened fire and continued to fire, that he failed to direct them to consider the “absolute necessity” of the use of the force used and that he failed to direct the jury properly in response to its question about shooting at a corpse. She claimed that the coroner failed to correct errors in the parties’ closing submissions to the jury. Finally, she challenged the coroner’s refusal to discharge the juror hostile to the next-of-kin so that the jury was neither fair, impartial nor independent.", "67. Those proceedings have not yet been heard by the High Court. B. Relevant domestic law and practice 1. Inquests – Legislation 68.", "Coronial law in Northern Ireland was consolidated in the Coroners Act (Northern Ireland) 1959 (“the 1959 Act”) and supplemented by the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”). 69. Section 7 of this Act imposes a duty on certain persons, who have reason to believe that the deceased person died from unnatural causes, to notify the relevant coroner immediately. 70. Section 8 imposes the following duty on the police: “Whenever a dead body is found, or an unexpected or unexplained death, or a death attended by suspicious circumstances, occurs, the district inspector within whose district the body is found, or the death occurs, shall give or cause to be given immediate notice in writing thereof to the coroner within whose district the body is found or the death occurs, together with such information also in writing as he is able to obtain concerning the finding of the body or concerning the death.” 71.", "Section 31(1) of the 1959 Act provides: “Where all members of the jury at an inquest are agreed they shall give, in the form prescribed by rules ..., their verdict setting forth ... who the deceased person was and how, when and where he came to his death.” 72. Rule 15 of the 1963 Rules provides that the proceedings and evidence at an inquest shall be directed solely to ascertaining who the deceased was; how, when and where the deceased came by his death; and the particulars for the time being required by the laws concerning births and deaths registration. However, Rule 16 provides that: “Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in [Rule 15].” 73. Rule 22(1) provides: “After hearing the evidence the coroner, or, where the inquest is held by a coroner with a jury, the jury, after hearing the summing up of the coroner shall give a verdict in writing, which verdict shall, so far as such particulars have been proved, be confined to a statement of who the deceased was, and how, when and where he died.” 74. Rule 23(1) provides: “Any verdict given in pursuance of Rule 22 shall be recorded in the form set out in the Third Schedule.” 75.", "The Third Schedule to the 1963 Rules provided a standard form of verdict. The cause of death was to be stated and was defined as “the immediate cause of death and the morbid conditions (if any) giving rise to the immediate cause of death”. The form stated that one of the following forms of words should be used to express the verdict of the jury or the conclusion of the coroner as to the death: “died from natural causes; died as the result of an accident/misadventure; died by his own act ...; open verdict (to be used where none of the above forms of verdict is applicable)”. Since 1980 a form is provided for inclusion of the verdict of the inquest jury or the conclusions of the coroner under the title “Findings”. 76.", "Section 35(3) of the Justice (Northern Ireland) Act 2002 (replacing section 6(2) of the Prosecution of Offences (Northern Ireland) Order 1972) provides: “Where the circumstances of any death which has been, or is being, investigated by a coroner appear to the coroner to disclose that an offence may have been committed against the law of Northern Ireland or the law of any other country or territory, the coroner must as soon as practicable send to the Director [of Public Prosecutions] a written report of the circumstances.” 2. Inquests – relevant case-law 77. In R v. Coroner for North Humberside and Scunthorpe, ex parte Jamieson ([1995] QB 1, concerning England and Wales), the Court of Appeal ruled that “how” meant “by what means”, a question directed to how the deceased came by his death. While a verdict could properly incorporate a brief and neutral statement, the verdict was to be factual, expressing no judgment or opinion and it was not the jury’s function to prepare detailed factual statements. 78.", "In the case of R v. Secretary of State for the Home Department ex parte Amin ([2003] UKHL 51), the House of Lords ruled on the requirements of an Article 2 compliant investigation. In R (Middleton) ν. West Somerset Coroner ([2004] 2 AC 182), the House of Lords reviewed the scope of the “Jamieson” inquest and found that, since a Jamieson inquest could not examine whether the conduct of State agents might reasonably have prevented death, it was incompatible with Article 2. To comply with that Article, the inquest had to consider “by what means” and “in what circumstances” the deceased came by his death, so that the inquest verdict would be broader in scope 79. On 11 March 2004 the House of Lords found that there was no obligation to conduct an inquiry compatible with Article 2 when the death had occurred before the HRA came into force (In re McKerr ([2004] 1 WLR 807).", "80. On 28 March 2007 the House of Lords delivered its judgment in Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14. It relied on the McKerr judgment to the effect that the HRA did not apply to a pre-HRA death or, therefore, to the investigation of any such death. However, section 8 of the 1959 Act plainly required the police to disclose to the coroner such information about the deaths as the police were then or thereafter able to obtain, subject to any relevant privilege or immunity. 81.", "In a later judicial review action, Hugh Jordan successfully contested a PSNI refusal to disclose to him all documents disclosed by it to the coroner, except those to which valid professional privilege or immunity attached (In re Jordan’s Application [2008] NIQB 148). The High Court’s decision was informed by: “... the confusion that has been created by the fragmented production of documents over the years. There has been duplication of some documents and a failure to produce certain documents on some occasions and then their production on other occasions. It has been acknowledged that the level of redactions have on occasions been excessive.” Accordingly, the High Court (under section 8 of the 1959 Act) ordered the PSNI, inter alia, to make a full and indexed disclosure to Hugh Jordan. 82.", "In 2008 alone there were six judicial review applications as regards Pearse Jordan’s inquest. In 2009 the Court of Appeal made the following comment about the delay in holding the inquest into Pearse Jordan’s death (Hugh Jordan v. the Senior Coroner [2009] NICA 64): “(3) ... This inquest has taken an extremely long time to reach this point and has been dogged by procedural wrangling, frequent judicial review applications and hearings in the House of Lords and Strasbourg all of which have contributed to the length and complexity of the inquest. (4) The current state of coronial law is extremely unsatisfactory. It is developing by means of piecemeal incremental case law.", "It is marked by an absence of clearly drafted and easily enforceable procedural rules. Its complexity, confusion and inadequacies make the function of a coroner extremely difficult and is called on to apply case law which does not always speak with one voice or consistently. One must sympathise with any coroner called on to deal with a contentious inquest of this nature which has become by its nature and background extremely adversarial. The problems are compounded by the fact that the [PSNI] which would normally be expected to assist a coroner in non contentious cases is itself a party which stands accused of wrong doing. It is not apparent that entirely satisfactory arrangements exist to enable the PSNI to dispassionately perform its functions of assisting the coroner when it has its own interests to further and protect.", "If nothing else, it is clear from this matter that Northern Ireland coronial law and practice requires a focused and clear review to ensure the avoidance of the procedural difficulties that have arisen in this inquest. What is also clear is that the proliferation of satellite litigation is extremely unsatisfactory and diverts attention from the main issues to be decided and contributes to delay.” 83. Following this Court’s judgment in Šilih, cited above, the Supreme Court reversed the House of Lords’ judgment in McKerr and accepted that an inquest should be compliant with Article 2 even for a pre-HRA death (In the matter of an application by Brigid McCaughey and another for Judicial Review [2011] UKSC 20, see paragraph 40 above). 3. Legal Aid for inquests 84.", "In July 2000 the Lord Chancellor announced the establishment of an extra-statutory ex gratia scheme of public funding for representation in proceedings before coroners in exceptional inquests in Northern Ireland. In March 2001 he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. These included, inter alia, consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship with the deceased. 4. The Historical Enquiries Team (“the HET”) 85.", "The HET is a special investigative unit of the PSNI set up in 2005 to review the investigations conducted into deaths in Northern Ireland between 1968 and 1998. It is answerable to the Chief Constable of the PSNI. It has approximately 3,000 cases to examine. The HET has two primary objectives: to ensure that each case is comprehensively examined to current professional standards to the extent that it can be satisfied that all the evidential possibilities have been explored, and to work closely with families including giving to each family a report on the death of a deceased family member. 5.", "Relevant Committee of Ministers Resolutions 86. Between 2001 and 2003 the Court adopted six similar judgments concerning the investigation of killings by security forces in Northern Ireland between 1968 and 1998 (see Hugh Jordan and McKerr, both cited above; Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001; Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001; McShane v. the United Kingdom, no. 43290/98, 28 May 2002; and Finucane v. the United Kingdom, no.", "29178/95, ECHR 2003‑VIII). 87. In interim Resolution CM/ResDH(2007)73 on these cases, the Committee of Ministers urged the Government to take “without further delay all necessary investigative steps ... to achieve concrete and visible progress”. In March 2008 and having evaluated the measures taken by the authorities, the Committee of Ministers decided “to close the examination of the issues related to the fact that the inquest proceedings did not commence promptly and were not pursued with reasonable expedition”. However, the Committee’s examination of individual and of other general measures would continue.", "88. The Information Document (prepared by the Department for the Execution of Judgments, CM/Inf/DH(2008)2 revised) of 19 November 2008 reviewed progress in implementing these judgments. As regards individual measures and the Hugh Jordan case, the document indicated that it was “concerned that the inquest in this case has still not commenced although it was announced previously that it would begin in April 2008”. Information was therefore “awaited on the measures taken or envisaged in order to ensure that the inquest in this case runs without any further delay”. As regards Kelly and Others, McKerr and Shanaghan, the Department awaited information on the outcome of, inter alia, the ongoing investigations.", "89. By interim Resolution CM/ResDH(2009)44 of March 2009, the Committee closed its examination of two general measures (concerning the HET and the State’s obligations under Article 34 of the Convention) and of individual measures in McShane and Finucane for the specific reasons given. However, it continued its examination of individual measures in Hugh Jordan, Kelly and Others, McKerr and Shanaghan. In this latter respect, the Committee noted “with concern that progress with regard to the individual measures in these cases has been limited, in particular in the case of Hugh Jordan where the inquest will not start before June 2009 although it was announced previously that it would begin in April 2008” and it strongly urged the authorities to “take all necessary measures with a view to bringing to an end, without further delay, the ongoing investigations while bearing in mind the findings of the Court in these cases”. THE LAW 90.", "The applicants made a number of complaints under the substantive and procedural aspects of Article 2 of the Convention regarding the deaths of Martin McCaughey and Desmond Grew and, under Article 13, concerning the lack of an effective domestic remedy in those respects. 91. Article 2 reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 92. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 A. The parties’ submissions 1.", "The Government 93. The Government maintained that the applicants had failed to exhaust domestic remedies as regards the substantive complaint because their civil action was pending. While the Government noted that there appeared to be two lines of jurisprudence, they considered that the governing authority lay with the line of case-law in Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000-I); the six judgments concerning Northern Ireland cited at paragraph 86 above; and Bailey v. the United Kingdom ((dec.), no. 39953/07, 19 January 2010).", "The cases which the applicants regarded as showing a contrary line on victim status were distinguishable. 94. In any event, there had been no violation of the substantive or the procedural aspects of Article 2 of the Convention and the Government relied mainly on the scope, procedure and result of the inquest which, pursuant to the judgment of the Supreme Court in May 2011 (see paragraph 40 above), was conducted in an Article 2 compliant manner. 95. As to the substantive complaint about the planning and conduct of the operation, the inquest provided a full and public investigation into the facts surrounding those deaths.", "The inquest jury found that the soldiers had used reasonable force, that there had been no flaws in the planning or control of the operation and that no further steps could have been taken to minimise the risk of lethal force being used. 96. The Article 2 compliant inquest also meant that there had been compliance with the procedural guarantees of Article 2. The inquest was transparent and rigorous. It took place in public.", "There was significant document disclosure: while a certain number of documents were no longer available due to the passage of time, the evidence gathered by the inquest was such that the unavailability of some documentary evidence did not diminish the ability of the inquest to resolve the issues required for it to comply with Article 2. Legal aid was granted and the applicants were represented by a solicitor and two counsel. They were permitted to participate fully in the inquest. 97. While there had been significant delay in holding that inquest, there was no evidence that this delay had prejudiced the integrity of the inquest process.", "The Government noted that the High Court had found a violation of Article 2 of the Convention in January 2004 and in May 2011 it was accepted that the inquest had to comply with Article 2. 98. The scope of the inquest allowed the jury to explore and rule on the relevant matters. As to the command and control of the operation, the inquest heard Officer Y (a senior officer in the RUC TCG who had, with others, tasked the specialist unit for the present operation); Soldier K (the officer commanding of the specialist military component that provided capability to the RUC in Northern Ireland); Solider H (the captain with responsibility for the military unit involved in the operation); Soldiers A, C, D, E, F, G and I; and Soldier J (who gave evidence as to the training of the relevant SAS unit). All those soldiers (apart from Soldier J) also gave evidence as to the planning of the operation, including its objective, as well as on the briefings prior to the operation and on what was known about the deceased.", "Those military witnesses, in particular Soldiers A, C, D and H, gave evidence on steps taken to reduce the risk of lethal force being used and Soldiers A, C and D gave evidence as regards the justification for the use of lethal force in the particular circumstances. 99. The conclusions of the earlier investigation were the same as those reached by the inquest jury, a fact which supported the submission that the RUC investigation was sufficiently robust and independent as to ascertain all the facts and reach correct conclusions on the basis of the information available. The RUC officers who carried out the original investigation denied in evidence that they had not carried out a sufficiently independent or probing investigation into the incident. 100.", "Reasons for not prosecuting had been provided by the DPP and the DPP would have to reconsider that decision should a reference be made under section 35(3) of the 2002 Act, which decision would, in turn, be amenable to judicial review. 101. Finally, the Government argued that there had been no violation of Article 13 of the Convention. The pending civil action for damages indicated that the applicants accepted the existence of an effective civil remedy. In any event, the inquest provided a thorough and effective investigation, and judicial review otherwise provided a remedy allowing the applicants to challenge decisions of the coroner and, were it to be relevant in the future, any decision by the DPP not to prosecute.", "2. The applicants 102. The applicants complained of a violation of the substantive aspect of Article 2 arguing that the use of lethal force was not absolutely necessary in that the operation had not been planned and controlled so as to minimise the risk to life and, indeed, that there had been a deliberate decision to kill the deceased. Given the inquest’s failure to comply with the procedural requirements of Article 2, the inquest verdict could not be relied upon. 103.", "As to the victim exception on which the Government relied as regards the pending civil proceedings, the applicants relied on the line of jurisprudence represented by Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 55-56, 20 December 2007; Beganović v. Croatia, no. 46423/06, § 56, 25 June 2009; Fadime and Turan Karabulut v. Turkey, no. 23872/04, §§ 31-48, 27 May 2010; Kopylov v. Russia, no. 3933/04, § 121, 29 July 2010; Gäfgen v. Germany [GC], no.", "22978/05, § 119, ECHR 2010; and Darraj v. France, no. 34588/07, §§ 22-53, 4 November 2010. Ineffective investigative, inquest and prosecution processes undermined the civil action so, even if that action was pending, that did not deprive them of their victim status or suggest that they had not yet exhausted domestic remedies. 104. The applicants also complained of a breach of the procedural obligation to carry out an independent and effective investigation.", "105. They argued that the RUC post-operation investigation lacked independence and was ineffective. There was no hierarchical independence between those involved in the operation (RUC officers and soldiers) and those investigating it (RUC officers). The RUC investigation also lacked practical independence: the RUC regarded themselves as liaising with, as opposed to investigating, the soldiers so that, for example, the shooters were not separated before making their statements and the statements were perfunctory. The investigation was inadequate in that it focused disproportionately on whether civilians in the vicinity were responsible for the weapons and this was supported by the evidence of Soldier L at the inquest.", "While the briefing notes of soldiers before and after the shooting as well as radio logs of communications between the shooting soldiers and headquarters had existed and were under RUC control, the RUC officers investigating the incident were not provided with those notes and logs and, as confirmed by witnesses at the inquest, a significant body of documents (including these notes and logs) had since disappeared. There had also been inadequate public scrutiny of the investigation and the inquest did not resolve that. 106. They also argued that the DPP had failed to inform the applicants of the decision not to prosecute and the reasons eventually given in July 2011 were inadequate. In addition, the criminal-justice system, as it applied to the prosecution of killings by State agents, was not Convention compatible.", "The applicants challenged the standard evidential test for prosecution and the breadth of the law on self-defence. 107. They further maintained that the involvement of the next-of-kin was inadequate to safeguard their interests. The first applicant was not formally advised of her son’s death and, indeed, the RUC had taunted her family about his death. The first formal contact by the authorities was in 1997 when the coroner advised that he had received papers in the case and they were not kept informed by the DPP (see the preceding paragraph).", "Later, certain decisions during the inquest by the coroner prevented them from effectively participating in the inquest (see paragraph 110 below). 108. They also argued that the inquest, which took place after the introduction of the application, had not fulfilled the procedural obligations. 109. In the first place, they considered the inquest ineffective.", "The exclusion of documentary and oral evidence about other incidents of lethal force excessively limited the scope of the inquest because it precluded scrutiny of the role of specialist military units in lethal-force incidents when the allegations were of a “shoot-to-kill” policy and, at the least, of such units being more likely to use lethal and/or excessive force unnecessarily. In addition, the coroner’s questions to the jury undermined the jury’s ability to scrutinise effectively the planning and control of the operation so as to minimise any recourse to lethal force as well as the acts of each soldier in using lethal force. Moreover, the coroner’s response to the jury question about shooting at a corpse was a significant misdirection: it unduly narrowed the scope of the investigation towards the limited “cause of death” and away from the “circumstances whereby the deceased came by his death”. The coroner’s direction was also incorrect on the issue of excessive force: it concerned the shooting of someone who could not pose a threat and it was also illustrative of the conduct of the soldiers individually and collectively. 110.", "Secondly, as a result of the deficient rulings as regards other lethal-force incidents, the next-of-kin were prevented from participating in the inquest to the extent necessary to protect their legitimate interests and there was insufficient public scrutiny of the proceedings to secure accountability. 111. Thirdly, the continued involvement of the juror who was demonstrably hostile towards the next-of-kin meant that the jury could be considered neither fair nor impartial nor, therefore, independent. The applicants emphasised the unique and particularly sensitive role of inquest juries in Northern Ireland. 112.", "Finally, they argued that the delay of over twenty-one years before an Article 2 compliant inquest was opened was excessive and unexplained and that such delays were demonstrably endemic. Their primary argument was that this delay amounted, of itself, to a breach of the obligation to provide an investigation that began promptly and proceeded expeditiously. Further, they contended that the delay had actually compromised the effectiveness of the inquest process in different ways. In this latter respect, they claimed that the delay had led to the loss and/or destruction of a significant body of contemporaneous documentation. The delay had also prejudiced the attendance of witnesses: certain witnesses could not be compelled because they no longer resided in the jurisdiction (Soldier B did not attend at all and Soldier A did not re-attend) and others had died or were ill (only one RUC officer involved in planning and control could attend and his recollection was limited).", "The applicants specifically highlighted the delay in granting them legal aid for the inquest and pointed out that the onus had been placed entirely on them to ensure the inquest progressed. 113. The HET investigation could not, in the applicants’ view, remedy these deficiencies. It was not an investigation but a paper review: only Soldier A was interviewed and he essentially confirmed his prior statement; it did not identify any soldier; it had an undisclosed agreement with the MOD on security issues; it failed to review ballistics or forensic evidence and to conduct expert studies; and it failed to investigate the involvement of military witnesses in other lethal-force incidents. The HET review was ineffective, lacked independence, failed to involve the next-of-kin and had no adequate element of public scrutiny.", "114. Finally, the applicants complained under Article 13, taken in conjunction with Article 2, that they had no effective domestic remedy since the HRA did not apply to deaths occurring before it came into force. The judgment of the Supreme Court of May 2011 meant that they could rely on their Convention rights to secure an Article 2 compliant inquest thereafter but not to complain about past investigative failings. Thus it could not be said that they could enforce the substance of their Convention rights in the domestic legal system. 3.", "The Committee on the Administration of Justice (“the CAJ”) 115. The CAJ is a non-governmental organisation affiliated with the International Federation of Human Rights. The CAJ considered the delay in holding the present inquest to be illustrative of a wider problem concerning controversial inquests in Northern Ireland. 116. The CAJ referred to the delay in executing the six judgments of this Court concerning Northern Ireland, especially as regards the expediting inquests.", "There was an unacceptable and endemic pattern of State delay punctuated by proceedings by the next-of-kin attempting to move the process forward. The CAJ submitted a list from the coroner’s service dated July 2011 (updating the list submitted to the Supreme Court in April 2011) which listed thirty-eight cases in which inquests were either outstanding or had just finished: five of the deaths had taken place in 1971 and 1972 and only one inquest had taken place (in June 2011); eight deaths had occurred in the 1980s and while provisional dates had been set, no inquests had been held; and eighteen concerned deaths in the 1990s in respect of which only one inquest had been held. Most of the cases concerned the use of lethal force by the security forces and some concerned killings attributed to paramilitary forces. Delay since the above‑mentioned six judgments of this Court was, according to the CAJ, an aggravating factor and it referred to numerous public declarations of various bodies concerning reform of the Convention system which emphasised the need to execute judgments effectively and speedily. Indeed, the Government itself recognised that inquest delay had violated Article 2 (Command Paper 7524, “Responding to Human Rights Judgments: Government Response to the Joint Committee on Human Rights’ Thirty-First Report of Session 2007-08” (January 2009).", "117. The CAJ proposed a number of alternative ways in which the Court’s judgment could address this endemic issue. Damages could be increased to reflect additional non-pecuniary damage given the delay since the lead judgments. A timetable could be imposed for future proceedings and/or a graduated schedule of compensation could be laid down to cover any subsequent period of delay. The Court could find a violation on the delay aspect and adjourn the remainder of the case pending the State’s response.", "The Court might consider making the case a pilot judgment and giving operative directions about delay under Article 46 of the Convention. 4. The Equality and Human Rights Commission (EHRC) and the Northern Ireland Human Rights Commission (“the NIHRC”) 118. The EHRC is an independent statutory non-departmental public body tasked with monitoring equality and human rights. The NIHRC is a statutory body created pursuant to the Belfast Agreement of April 1998 and it promotes human rights standards in Northern Ireland.", "Both have intervened in cases before this Court, the latter in the above-cited cases of McKerr, Hugh Jordan, Kelly and Others and Shanaghan. They also appeared before the Supreme Court in the applicants’ recent judicial review action. 119. The EHRC and NIHRC raised an issue not addressed by either party. They endorsed and repeated the submissions of the EHRC in another pending case before this Court (Armani da Silva v. the United Kingdom, no.", "5878/08). They contended that the standard evidential test for prosecution failed adequately to comply with the State’s positive obligation to prosecute. The need for a lower evidential test was enhanced by the fact that the law of self-defence in English law was drawn very widely, was partially subjective in its formulation and was inconsistent with the requirements of Article 2 § 2. The standard evidential test, combined with the law of self‑defence, meant that prosecutions of State officials for causing death were exceedingly rare. Moreover, the scope for review by the domestic courts of the application of the evidential test was also limited and failed to meet the strict procedural requirements of Article 2.", "120. They provided statistics on deaths caused by the use of lethal force by State agents and argued that the comparatively low number of prosecutions raised concerns about the impunity of such agents. Various authorities (the coroner’s service, the Office of the Police Ombudsman and the HET) were overwhelmed with requests for reinvestigations. All of this had, in turn, caused enduring damage to the rule of law in Northern Ireland. B. Admissibility 121.", "Save in relation to the complaint about investigative delay, the Court is not in a position to consider the merits of the complaints under the substantive and other procedural aspects of Article 2 because the applicants’ civil action is pending (see for example, Caraher, cited above; Hay v. the United Kingdom (dec.), no. 41894/98 ECHR 2000-XI; McKerr, cited above, §§ 19-23; and Bailey, cited above) and because, given the pending judicial review proceedings, the initiation of further relevant investigative procedures, including of a criminal and/or disciplinary nature, remains possible (see for example, Nikolova and Velichkova, cited above, §§ 55-56; Gäfgen, cited above, § 119; and Darraj, cited above, §§ 22-53). 122. The applicants’ civil action, issued in 2012, is pending. The Court does not accept that there is any demonstrated factor which can be considered to have deprived the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of the deaths and within any applicable limitation period, although the present and any future inquest verdict as well as any future criminal or disciplinary proceedings (see immediately below) could clearly inform the civil action.", "While the lapse of time would make it difficult for the civil court to piece together the evidence, any such attempt should in principle take place in a domestic, not in an international, forum (see McKerr, cited above, § 118; and Hugh Jordan, cited above, §§ 111-12). 123. As to further relevant investigative procedures, it is true that the inquest has now taken place, ending in May 2012. However, the Court considers, for the reasons detailed below, that that inquest was an unusual fact‑finding exercise, key aspects of which have been challenged in some detail for their compliance with Article 2 in pending judicial review proceedings. 124.", "The present inquest procedure was a relatively novel one, which evolved significantly by dint of several judicial review actions initiated by the applicants, each of which was important in terms of coronial law and practice in Northern Ireland and many of which ended in their favour. 125. Their first action ended in March 2007 with a House of Lords judgment clarifying, in the applicants’ favour, a fundamental issue concerning the disclosure obligations of the PSNI (see paragraph 23 above). The second action ended, also in the applicants’ favour, with a judgment of the Supreme Court of May 2011 of some significance, as it overturned the prior judgment of the House of Lords in McKerr and provided that inquests into pre-HRA deaths had to be compliant with Article 2 of the Convention (see paragraph 40 above). This broadened the scope of the inquest (covering, notably, “in what circumstances” the deceased came by their deaths, see paragraph 78 above) and provided the applicants with a range of additional procedural rights.", "126. This judgment of the Supreme Court of May 2011 then had to be interpreted and applied by the coroner to the peculiarities of the present legacy case including its historical context (for example, the related shoot‑to-kill allegations) and the delay since the deaths (for example, the intervening disclosure obligations, the loss of material evidence and the unavailability of witnesses). Consistently, the applicant launched three judicial review actions during the inquest hearing. However, at that point the delay was such (over twenty-one years) that the High Court felt obliged to raise the threshold for leave to apply for judicial review to “exceptional” circumstances warranting the adjournment of the inquest, the High Court on one occasion noting that there was, in any event, a post-inquest remedy. Two judicial review applications were rejected on this basis.", "Not unsurprisingly therefore the first applicant began another judicial review action in June 2012 after the inquest, repeating two arguments rejected by the High Court as not “exceptional” and raising several new procedural issues (see paragraphs 64-66 above). The High Court has yet to hear the pending judicial review action. The applicants have requested the High Court to quash the inquest verdict and to order a fresh inquest, in which case the coroner’s decision to refer or not to the DPP and the DPP’s decision to prosecute or not would both be open to judicial review. 127. The applicants also argued that certain past deficiencies as well as the delay to date had already prejudiced the investigation and inquest processes.", "It is also true that this Court identified certain procedural deficiencies before the inquest had even taken place in the above-cited Hugh Jordan case. However, in contrast to the domestic law in issue in that case, the Supreme Court judgment of May 2011 meant that domestic law required the present inquest to comply with the procedural requirements of Article 2. This the coroner set out to do and the pending judicial review action will review key aspects of the inquest against the procedural guarantees of Article 2. Pending the outstanding domestic proceedings, the Court considers that it cannot examine whether the inquest has been deprived, by prior investigative shortcomings or delay, of its ability to establish the facts and determine the lawfulness or otherwise of the deaths in question (see McKerr, § 117; Hugh Jordan, § 111; and McShane, § 103, all cited above). 128.", "In all of the above circumstances, the complaints under Article 2, other than the complaint about investigative delay itself, are inadmissible as being premature and/or on the ground that domestic remedies have not yet been exhausted within the meaning of Article 35 § 1. The associated complaint under Article 13 must also therefore be rejected in accordance with Article 35 §§ 3 (a) and 4. The Court notes that, should the applicants be dissatisfied in the future with the progress or outcome of those domestic procedures, it would be open to them to reintroduce these complaints under the substantive and procedural aspects of Article 2 of the Convention. 129. However, the consequence of the pending judicial review proceedings is that the investigative process into the shootings of the applicants’ relatives, including the inquest, has still not finished twenty-three years later.", "As to the admissibility of this remaining complaint about the investigative delay itself, the Government did not explain how the High and Supreme Court judgments to which they referred provided effective redress for such delay. The Court considers that this complaint under Article 2 about investigative delay is not manifestly ill-founded within the meaning of Article 35 § 3 (a) or inadmissible on any other ground. It must therefore be declared admissible, along with the related complaint under Article 13. C. Merits 130. Turning to the merits of the admissible complaint, it is established that Article 2 requires investigations to begin promptly and to proceed with reasonable expedition (see the six judgments concerning Northern Ireland, at paragraph 86 above), and this is required quite apart from any question of whether the delay actually impacted on the effectiveness of the investigation.", "While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Hugh Jordan, cited above, §§ 108 and 136-40). 131. The Court considers it striking that the present deaths occurred in 1990 and that the inquest hearing proper did not begin until March 2012, more than twenty-one years after those deaths. It has noted the following periods of delay which the Government have not attempted to justify. 132.", "The decision of the DPP not to prosecute was not taken until two and a half years after the deaths. While it is not clear when the applicants found out about the decision (the DPP was not obliged by domestic law at the time to notify the next-of-kin directly), it was clearly some time thereafter. 133. The RUC did not forward material to the coroner until four years after the deaths; a further disclosure followed a year later in late 1995. Thereafter over two years went by before the coroner made his first contact with the applicants and this was only to inform them of the disclosure made years earlier by the RUC.", "An additional four and a half years passed before the coroner requested the relevant soldiers’ statements from the PSNI, which statements appear to have been furnished to the coroner in mid-2002 when other documents were refused. At this point, the deaths had taken place almost twelve years previously. 134. There followed lengthy correspondence between the applicants, the coroner and the PSNI about disclosure. It was only after the applicants took judicial review proceedings in October 2002 that the PSNI provided the applicants, in February 2003, with the documents already forwarded to the coroner.", "While it is true that three instances examined the action for judicial review, the proceedings took in total four and a half years and the result in March 2007 was favourable to the applicants. 135. Disclosure continued to be disputed thereafter: over two years after the above-noted House of Lords’ judgment, disclosure of certain material from the PSNI to the coroner was still outstanding (July 2009). Despite the applicants’ numerous follow-up letters, the first preliminary inquest hearing did not take place until September 2009 and redacted PSNI material was furnished to the applicants in December 2009. Further pre-inquest exchanges with the coroner, initiated by the applicants, appear to have concerned the scope of the inquest.", "Issues of disclosure, expert evidence and site inspection remained open until they were resolved in the applicants’ favour by the Supreme Court judgment of May 2011. Although the three instances examined this second action quickly, resolving it in the applicants’ favour, this action nevertheless added another two years to the delay in starting the inquest. It took a further nine to ten months for more soldiers’ statements to be furnished to the applicants (in February and March 2012), just prior to the opening of the inquest in March 2012. Thereafter the inquest proceeded quickly, ending in May 2012 with a detailed verdict. 136.", "This period of over twenty-two years can be broadly divided into three phases, which are illustrative of the nature of the delay the present applicants encountered. 137. The first, from 1990 to 2002, was marked by inordinately long periods of inactivity during which some disclosure was made by the RUC and the PSNI, which disclosure was later shown to have been inadequate. 138. The second, from 2002 to March 2012 when the inquest began, is characterised by the applicants’ and others’ legal actions and initiatives which were demonstrably necessary to drive forward their inquests and to ensure the clarification of certain important aspects of coronial law and practice including, notably, those pertaining to the rights of next-of-kin.", "In particular, the principles flowing from the judgments of this Court of 4 May 2001 were applied in domestic law, not through legislation, but through a series of complex and overlapping domestic judicial review applications. The entry into force of the HRA in 2000 brought with it further questions of relevance to coronial law and, notably, its application to investigations into pre-HRA deaths, a key issue not finally resolved until the judgment by the Supreme Court in the applicants’ case of May 2011 which, indeed, overturned an earlier judgment of the House of Lords in McKerr (see paragraph 40 above). The present applicants were centrally involved in these important legal developments. Their inquest was postponed, effectively from 2002 to 2012, pending their main two judicial review actions, the legal issues clarified in those two actions were, as noted above, crucial for coronial law and practice and the findings were in their favour. However, this manner of proceeding inevitably delayed the investigations and inquests into security force killings in Northern Ireland significantly and this was aptly described by the Court of Appeal in one of Hugh Jordan’s numerous judicial review actions about the death of his son, Pearse Jordan (see paragraph 82 above).", "The fact that it was necessary to postpone the applicants’ inquest so frequently and for such long periods pending clarifying judicial review actions demonstrates to the Court that the inquest process itself was not structurally capable at the relevant time of providing the applicants with access to an effective investigation which would commence promptly and be conducted with due expedition (see Hugh Jordan, § 138, and McKerr, § 155, both cited above). 139. By the time the third and last phase began with the inquest hearing, the delay at that point was such that the High Court considered itself obliged to raise the threshold of leave to apply for judicial review to “exceptional circumstances”, which made the clarification of the procedural rights of the applicants exceedingly difficult and which therefore rendered rather inescapable another post-inquest judicial review action. That action remains pending before the High Court. 140.", "These delays cannot be regarded as compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths, in the sense that the investigative process, however it is organised under national law, must be commenced promptly and carried out with reasonable expedition. To this extent, the foregoing finding of excessive investigative delay of itself entails the conclusion that the investigation was ineffective for the purposes of Article 2. There has, accordingly, been a violation of Article 2 of the Convention under its procedural aspect by reason of excessive investigative delay. The Court also concludes that no separate issue arises under Article 13 in that respect (see Hugh Jordan, cited above, §§163-65). II.", "APPLICATION OF ARTICLE 46 OF THE CONVENTION 141. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.", "...” 142. 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 set out in 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; and Abuyeva and Others v. Russia, no. 27065/05, §§ 235-43, 2 December 2010). 143.", "The applicants and the CAJ suggested that delay in carrying out inquests, in cases of killings by the security forces in Northern Ireland, is an endemic problem and the CAJ proposed, inter alia, that the Court make a ruling under Article 46 of the Convention. 144. The Court has found that the investigative delay in the present case was such that it was incompatible with the procedural guarantees of Article 2. In so doing, it considered that throughout the relevant period of time the inquest process itself was not structurally capable of providing the applicants with access to an investigation which would commence promptly and be conducted with due expedition (see paragraphs 136-40 above). Information furnished by the coroner’s service of Northern Ireland in April 2011 to the Supreme Court and in July 2011 to the CAJ (see paragraphs 41 and 116 above) is noted.", "The Court considers that the carrying out of investigations, including the holding of inquests into killings by the security forces in Northern Ireland, has been marked by major delays. It further considers that such delays remain a serious and pervasive problem in Northern Ireland. While the contents of the Committee of Ministers Resolution of 2008 are noted, the Committee more recently expressed its concern about investigative delay (Resolution of March 2009) as regards four of the above-cited six judgments concerning Northern Ireland (see paragraphs 86-89 above). These four judgments reflected a pattern of delay very similar to that which took place in the present case (see, in particular, McKerr and Hugh Jordan). Almost twelve years after those four judgments were delivered, the Committee of Ministers continues to supervise individual measures of execution concerning investigative delay.", "145. The Court recalls that it falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance (see Abuyeva and Others, cited above, § 243). However, the Court considers that, whatever the specific modalities chosen, this must involve the State taking, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damages 147. The applicants did not submit a claim for pecuniary or non‑pecuniary damages. Accordingly, the Court considers that there is no call to award them any sums on that account. B.", "Costs and expenses 148. The applicants claimed 42,811.27 pounds sterling in legal costs and expenses before the Court, submitting relevant vouchers and bills. The Government considered this amount to be excessive (notably, the hours billed for the solicitor since the application and observations had been drafted by leading Counsel). 149. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "In the present case, regard being had to the documents in its possession, the above criteria, the two sets of observations required of the applicants and the total hours of work claimed, the Court considers it reasonable to award the sum of 14,000 euros, plus any tax that may be chargeable to the applicants on this sum, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement. C. Default interest 150. 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. FOR THESE REASONS, THE COURT 1. Declares, by a majority, the complaints under Articles 2 and 13 of the Convention concerning investigative delay admissible and the remainder of the application inadmissible; 2.", "Holds, unanimously, that there has been a violation of the procedural requirements of Article 2 of the Convention by reason of excessive investigative delay; 3. Holds, by six votes to one, that no separate issue arises, under Article 13 of the Convention taken in conjunction with Article 2, as regards that investigative delay; 4. Holds, unanimously, (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 14,000 (fourteen thousand euros), plus any tax that may be chargeable to the applicants on this sum, in respect of costs and expenses of the application, to be converted into pounds sterling at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; (c) that the Government must take, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 of the Convention are complied with expeditiously. 5. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 16 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosIneta ZiemeleRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Kalaydjieva; (b) concurring opinion of Judge Mahoney. I.Z.F.E.P. CONCURRING OPINION OF JUDGE KALAYDJIEVA[1] It would be difficult not to agree with the majority that the applicants’ complaints that, in violation of the requirements of Article 2 of the Convention, “the investigative process ... has still not finished twenty-three years later” in the case of the present judgment (see paragraph 129) and fifteen years later in the case of the Hemsworth judgment (see paragraph 68 of that judgment) are not manifestly ill-founded. The fact that the Government failed to investigate “expeditiously” appears flagrant.", "This cannot in itself justify a downgrade of the usual analysis performed by the Court in cases under Article 2 to one appropriate for cases concerning the “unreasonable length of proceedings”. The wrong premise of this analysis is that the requirement of Article 2 for investigations “to begin promptly and to proceed with reasonable expedition” is “quite apart from any question of whether the delay actually impacted on [its] effectiveness”. This premise seems to have little support in the Court’s position in hundreds of other cases, where the Court held that “any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness” (see, among many other authorities, Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001; Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002-IV; and Mojsiejew v. Poland, no.", "11818/02, 24 March 2009). Moreover, the case-law is clear in indicating that in certain cases a criminal investigation is required regardless of whether or not civil proceedings were or were not instituted seeking compensation for the damage allegedly sustained. In this regard the present two cases must be distinguished from the case of Hugh Jordan v. the United Kingdom (no. 24746/94, 4 May 2001), where the applicant had not availed himself of the opportunity of civil proceedings, as well as from the case of Caraher v. the United Kingdom ((dec.), no. 24520/94, ECHR 2000-I), where the applicant had in fact come to an agreement on compensation.", "In any event this Court has never defined civil compensation proceedings as the sole appropriate forum for the determination of the issue whether or not there has been a violation of Articles 2 or 3 of the Convention. The analysis followed by the majority then continues along the line of the delays “attributable to” the fact of the “exceptional” complexity of the traditional scope and competence of the coroner’s inquest and/or the time necessary for the domestic judiciary to overcome them at the request of the applicants (see paragraph 126 in the present judgment and paragraphs 69‑70 in Hemsworth). The Convention does not prescribe any specific form in which the required prompt investigation should take place. The procedure, in which the establishment of the facts takes place is irrelevant in so far as they were made known to those affected as a result of the authorities’ prompt and reasonable steps to this end (see, among many other authorities, Stoyanovi v. Bulgaria, no. 42980/04, §§ 64-69, 9 November 2010).", "In these circumstances I am far from convinced that it was open to the Government to rely on the deficiency or “complexity” of the existing domestic procedure, which seem to have been known to the authorities for some years after the first judgments of this Court in similar cases against the United Kingdom, or that they may rely on the time necessary to overcome the difficulties in the process of interpreting whether or not the domestic law “required [this] inquest to comply with the procedural requirements of Article 2” of the Convention (see paragraph 127 in this judgment and paragraph 70 in the Hemsworth judgment). The fact remains that the Government failed to demonstrate that they had, of their own motion, taken any, still less “all reasonable steps” to investigate with a view to establishing the facts. The rationale of the analysis appears further to rely on the delays “attributable” to the applicants’ own “understandable” conduct. The fact that the applicants in the two cases in question were required to make long and painful efforts in order to trigger a proper and effective investigation into the deaths of their next-of-kin and have the scope of the coroner’s inquest expanded, thus bringing it into conformity with the requirements of Article 2 of the Convention, cannot be held to reverse the positive ex officio obligation of States Parties into a remedy which affected parties are expected to exhaust. While it is true that States Parties to the Convention are required to provide effective access to the investigation for the next-of-kin, this neither changes the burden of the ex officio duty of the authorities nor limits it to “providing the applicants with ‘access’ to an ... investigation which would commence promptly and be conducted with due expedition” (see paragraph 138 of this judgment, and paragraph 73 of the Hemsworth judgment).", "That the applicants “understandably” availed themselves of whatever procedure was open and available to them cannot be held against them. This approach inevitably led the majority to the limited conclusion that the “unusual fact-finding exercise” of the coroner’s inquest itself was “not structurally capable ... of providing the applicants with access to an investigation which would commence promptly and be conducted with due expedition”. I fully agree with this conclusion. However, I question its usefulness at a time when more than ten years have elapsed since the adoption of the first judgments in similar cases concerning the United Kingdom (see paragraph 85 in this judgment and paragraph 14 in the Hemsworth judgment). The principles concerning the duty to investigate were indicated already in Hugh Jordan (cited above, §§ 72-74) and were followed with regard to all other States Parties to the Convention.", "The circumstances of the two cases in question concern the first and primary purpose of the investigation prescribed by Article 2 – the establishment and disclosure of the facts and circumstances known only to the authorities. The determination of appropriate effective redress, including administrative, disciplinary, criminal or pecuniary responsibility, is only possible as a result of such disclosure (see, for example, Iliya Petrov v. Bulgaria, no. 19202/03, 24 April 2012, or Nencheva and Others v. Bulgaria, no. 48609/06, 18 June 2013). An investigation appears to be unnecessary where the facts giving rise to the arguable complaints were known to the affected parties ab initio (see Nencheva and Others, cited above).", "There is nothing to explain, still less to justify, the failure of the domestic authorities to meet their obligations through more appropriate and expeditious means of their own choice, including by introducing appropriate legislative changes in choosing “as a matter of some priority” any other “specific modalities”. The question remains, however, whether in the face of a clearly ineffective domestic investigation which may be seen as amounting to a refusal to investigate, the Court may find itself in a situation where it may be prevented from subjecting such grave complaints to any scrutiny or must declare the domestic authorities “finally free” to discharge their obligations as they deem appropriate. Looking at what appear to be ample, but missed, opportunities to do so for more than fifteen or even twenty years, I am not convinced that “the respondent State remains free to choose the means by which it will discharge its legal obligations” under Article 2 of the Convention. Such a conclusion falls short of those reached more than ten years ago in similar cases against the United Kingdom, where the Court indicated that “a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts” (see Hugh Jordan, cited above, §§ 108 and 136-40). The conclusions in that case were premised on the assumption that there were no reasons to believe that the applicant would be unable to assert his rights at the national level.", "This assumption remains valid only where the affected party was not already continuously confronted with obstacles to learning and establishing the facts – as in the two cases in question. The majority in these two cases failed to scrutinise whether in the last two decades the authorities genuinely pursued – and the extent to which they finally achieved – this primary purpose of disclosure and establishment of facts, which would in its turn make possible any further steps required for the determination of disciplinary, criminal or pecuniary responsibility as appropriate. In this regard the majority merely noted the missing documents and witnesses and observed that “criminal and disciplinary proceedings, of central relevance to the investigative obligation under Article 2, can now be initiated” and that “future criminal or disciplinary proceedings ... could clearly inform the civil action” instituted in 2001 (see paragraphs 63 and 61 respectively of the Hemsworth judgment). In its earlier practice this Court declared that a finding of delay on the part of the domestic authorities (see paragraph 92 of the present judgment) was insufficient to deprive the injured party of victim status in the absence of a remedy in this regard (see Scordino v. Italy (no. 1) [GC], no.", "36813/97, §§ 178 et seq. and 193, ECHR 2006-V). It should not be overlooked that the Court developed its views on the positive obligations to investigate precisely in cases where the national authorities had failed to act promptly and effectively in establishing the circumstances and disclosing them to the public and to the injured parties. Where this is not done, the Court shall always be faced with the necessity of dealing with the facts submitted by the parties as a first-instance court. In addition to their failure to investigate promptly and officially, the Government did not find it necessary to inform the Court of its views as to whether or not the circumstances known to them disclosed a violation of Article 2.", "After decades of being faced with demonstrated reluctance and what would appear to be an attempted obstruction of justice (see paragraph 23 in the Hemsworth judgment), the applicants in that case were advised that the matter of the appropriateness of any potential criminal responsibility for the use of force against a person who was not even suspected of terrorist activities was now the subject of “active consideration” by the DPP (ibid., § 31), while in the present judgment there was allegedly still a possibility that the DPP would have to reconsider his decision. Any subsequent decision would, “in turn, be amenable to judicial review” (see paragraph 100 of this judgment). Having declared that “save in relation to the complaint about investigative delay, the Court [unlike in cases against other countries] is not in a position to consider the merits of the complaints under the substantive and other procedural aspects of Article 2” (see paragraph 121 of this judgment), the majority in fact reverted the applicants to further indefinitely long proceedings, advising them that “should [they] be dissatisfied in the future with the progress or outcome of those [forthcoming] procedures, it would be open to them to reintroduce their complaints [before the Court] (see paragraph 67 in the Hemsworth judgment) . In these circumstances I remain unconvinced that the domestic investigation was intended to “lead to the identification and punishment of those responsible” (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, with further reference to McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324; Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I; and Yaşa v. Turkey, 2 September 1998, § 98, Reports 1998‑VI).", "The absence of any plausible explanation for the failure to collect key evidence at the time when this was possible, and for attempts even to obstruct this process, should be treated with particular vigilance. In fact the period of demonstrated, if not deliberate, systematic refusals and failures to undertake timely and adequate investigation and to take all necessary steps to investigate arguable allegations under Articles 2 and 3 seem as a matter of principle to make it possible for at least some agents of the State to benefit from virtual impunity as a result of the passage of time. I refer to my separate opinion in the case of Oleksiy Mykhaylovych Zakharkin v. Ukraine (no. 1727/04, 24 June 2010). “In such circumstances the victims of alleged [violations] will be further humiliated by the fact that the open denial of an investigation successfully prevented the Court’s scrutiny and limited its role to witnessing acts which appear to be better qualified as ‘collusion in or tolerance of unlawful acts’”.", "I would prefer not to comment on the amount of the applicants’ compensation, which seems inappropriate even for “delays only”, and/or the risk of creating an impression of cynicism. My concern is that the overall effect of this judgment not only multiplies the ineffectiveness already observed, but also renders this Court’s subsidiary role clearly redundant. This role would have been unnecessary had the domestic authorities fulfilled their primary role in time. CONCURRING OPINION OF JUDGE MAHONEY This opinion is not intended to detract in any way from the reasoning of the Chamber’s judgment, with which I fully agree, but merely to add some observations on a point that is addressed in the judgment but not gone into in much detail, namely the relationship between two contrasting lines of authority concerning the interplay between the substantive and procedural requirements of the right-to-life clause under the Convention (Article 2). Two lines of authority The Government relied on a line of British cases exemplified by Caraher v. the United Kingdom ((dec.), no.", "24520/94, ECHR 2000-I – see paragraphs 86 and 93 of this judgment). This line of authority is usually summarised as entailing that where a breach of Article 2 – or Article 3, the clause prohibiting torture and inhuman or degrading treatment or punishment – has been acknowledged and adequate compensation paid in civil proceedings brought at national level, or where civil proceedings are pending or available, the Strasbourg Court should confine itself, in the international proceedings brought before it, to an examination of any plausible complaints made under the procedural aspect of Article 2 (or 3), it being accepted that payment of damages at national level cannot discharge the State from its duty under the Convention to secure the accountability of States’ agents for acts or omissions amounting to a breach of Article 2 (or 3). The applicants, on the other hand, relied on a line of authority originating in Nikolova and Velichkova v. Bulgaria (no. 7888/03, §§ 55-56, 20 December 2007 – see paragraph 103 of this judgment), which suggests that the examination of a substantive complaint under Article 2 (or 3) should be tied to the Court’s assessment of all the procedural protections available, including investigative processes and not being limited to any civil action brought or available. On one reading of this case-law, it requires that, for the Court to refrain from considering the substantive complaint in the international proceedings brought before it, there must be a domestic procedure capable of leading to the identification and punishment of the perpetrator, not that that procedure must in fact have done so (see, for example, the language used in Fadime and Turan Karabulut v. Turkey, no.", "23872/04, § 39, 27 May 2010, and Ablyazov v. Russia, no. 22867/05, § 54, 30 October 2012). Reconciling the two lines of authority My approach is that these two lines of authority can well be read as being reconcilable and not divergent. What is said in the Nikolova and Velichkova judgment goes to the content of the obligation imposed on the Contracting States by Article 2 and to the implications for the kind of strict scrutiny that should be carried out by this Court when examining Article 2 claims: in cases of wilful ill-treatment by State agents resulting in death, the breach of Article 2 cannot be dealt with by the State concerned exclusively through an award of compensation to the relatives of the victim. This judgment cites (at paragraph 55) the risk, failing proper prosecution and punishment of those responsible, of “buying off” the violation, of purchasing immunity for the perpetrators.", "As it was similarly put in Fadime and Turan Karabulut (cited above): “39. ... Confining the authorities’ reaction to incidents of deprivations of life to the mere payment of compensation would ... make it possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ... 44. ... Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions ... Compliance with the State’s positive obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce the criminal law against those who have unlawfully taken the life of another ... 45.", "While there is no absolute obligation for all prosecutions to result in conviction, or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence, ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts ...” The point was also succinctly made in Berganović v. Croatia (no. 46423/06, § 56, 25 June 2009) as regards complaints under Article 3: “... The civil remedies relied on by the Government cannot be regarded as sufficient for the fulfilment of a Contracting State’s obligations under Article 3 of the Convention in cases such as the present one, as they are aimed at awarding damages rather than identifying and punishing those responsible ...” Thus, the claim under Article 2 in relation to the procedural protection to be afforded in the national legal system in cases of killings by State agents will remain extant even if either sufficient compensation for conduct acknowledged as amounting to a substantive violation has already been awarded at national level or an effective domestic remedy capable of providing such acknowledgment and compensation is available. The possibility for the victim’s relatives to seek and receive compensation represents only one part of the measures required of the national legal system under Article 2 in relation to deaths resulting from action taken by State agents and, in particular, where the action was deliberate ill-treatment.", "In sum, ensuring proper investigation, followed, where appropriate, by prosecution of the perpetrators is a procedural obligation incumbent on States under Article 2 that continues to call for strict scrutiny on the part of this Court even where a substantive violation has been acknowledged at national level and sufficient compensation awarded or an effective domestic remedy capable of providing such acknowledgment and compensation is available. Put another way, the extancy of this obligation means that on the international level an application alleging a procedural violation must be examined on its merits by this Court even where the substantive violation, for its part, has been, or is susceptible of being, acknowledged and compensated for at national level. But these related conclusions do not in themselves and of themselves carry the consequence that an applicant is dispensed from the obligation incumbent on him or her under Article 35 § 1 to exhaust an appropriate domestic remedy, for example by bringing a civil action to obtain compensation for the substantive violation, if such a remedy is available and has not had its effectiveness undermined by the absence of adequate investigations. The differing obligations under Articles 2 (or 3) and 35 § 1 of the Convention, one incumbent on the State and the other on potential applicants to the Court, should not be confused and run into one. This was brought out in the Court’s Grand Chamber judgment in Akdivar and Others v. Turkey (16 September 1996, Reports 1996-IV), one of the first cases to establish the State’s duty to investigate under the Convention (for “Turkish” judgments employing similar reasoning, see Aksoy v. Turkey, 18 December 1996, Reports 1996‑IV, and Menteş and Others v. Turkey, 28 November 1997, Reports 1997-VIII; the “Turkish” case-law in this regard was then developed by the Court, through reading a duty to investigate directly into Article 2, in Kaya v. Turkey, 19 February 1998, §§ 86-87, Reports 1998-I, relying on the earlier British “Death on the Rock” case of McCann and Others v. the United Kingdom, 27 September 1995, §§ 161‑63 Series A no.", "324). By virtue of the operation of the burden of proof, as the Court explained in the Akdivar and Others judgment, a complaint should not be rejected by reason of the mere existence of a theoretically adequate civil remedy if the applicant could demonstrate that the remedy was for some reason inadequate and ineffective in the particular circumstances or that there existed special circumstances absolving him or her from the requirement of exhaustion. One such reason may be constituted by the failure of the domestic authorities to undertake investigations in the face of serious allegations of misconduct or infliction of harm by State agents (§ 68). The Court recognised that in the particular circumstances obtaining in south-east Turkey at that time, “... the difficulties in securing probative evidence for the purposes of domestic legal proceedings, inherent in such a troubled situation, may make the pursuit of judicial remedies futile and the administrative enquiries on which such remedies depend may be prevented from taking place”. (§ 70) The Court’s conclusion on the facts was as follows: “... Against such a background [of severe civil strife, coupled with the applicants’ position of insecurity and vulnerability following the destruction of their homes], the prospects of success of civil proceedings based on allegations against the security forces must be considered to be negligible in the absence of any official inquiry into their allegations, even assuming that they would have been able to secure the services of lawyers willing to press their claims before the courts.", "...” (§ 73) Not only would it sit ill with the Court’s aversion to blanket rules, but it would also fly in the face of the Akdivar and Others case-law to deduce from the Nikolova and Velichkova line of authority any blanket rule to the effect that the failure to carry out an effective investigation and prosecution, as required by Article 2 (or 3), will always and automatically make it necessary for this Court to examine on its merits a substantive complaint made under the Article. As the Court was careful to state in Akdivar and Others: “The Court would emphasise that its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that applicants are absolved from the obligation ... to have normal recourse to the system of remedies which are available and functioning. It can only be in exceptional circumstances such as those which have been shown to exist in the present case that it could accept that applicants address themselves to the Strasbourg institutions for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts.” (§ 77) On the other hand, it does of course follow from Nikolova and Velichkova, as it does from Akdivar and Others, that the possible rejection of the substantive complaint on the ground of non-exhaustion of domestic remedies should be tied to an assessment of all the procedural protections available, notably the existence or not of an adequate investigation; and this in order to see if an effective remedy to complain about the alleged substantive violation could indeed be said to be available to the applicant in practice. It can readily be acknowledged that in many cases the Nikolova and Velichkova approach will indeed require the Court to go into the merits of the substantive complaint.", "In terms of the Court’s procedure, the result may well either be that, as in Akdivar and Others, the inadequacies of the investigation are so evident that the ineffectiveness in practice of the remedy relied on by the Government can be found at the outset; or, where a plausible procedural complaint of inadequate investigation is made, that the question of exhaustion or not of domestic remedies has to be joined to the merits. But it cannot and should not be excluded that, in some cases, it is clear on the evidence that the effectiveness of the available domestic remedy to look at the substantive allegations of unjustified killing by State agents has not been so adversely affected as to render the remedy ineffective. In such circumstances, it is difficult to see any reason (i) why the applicant should be dispensed from his or her normal obligation under Article 35 § 1 to exhaust an available and effective remedy in relation to that particular, namely substantive, complaint and (ii) why the national system should not be allowed by this Court to do its subsidiary task. A distinction should be drawn between two aspects of the Convention’s operation. On the one hand, there is the strict scrutiny that this Court should always carry out in relation to Article 2 claims, notably as regards the procedural safeguards of proper investigation and prosecution, both in their own right as a ground for finding a violation of Article 2 and as a preliminary factor capable of affecting the effectiveness of legal and other remedies available to relatives of the victims.", "On the other hand, there is the “subsidiarity” obligation incumbent on applicants under Article 35 § 1 to exhaust available domestic remedies, even if those remedies relate to one branch only of their claim under Article 2, namely the substantive branch. There is overlap and linkage between these two aspects of the Convention’s operation, but the two are not 100% coextensive. As was intimated in Akdivar and Others, a finding of inadequate investigation and prosecution does not automatically, in a blanket fashion, render nugatory the applicant’s obligation to exhaust an available and effective domestic civil remedy to recover compensation for the substantive breach of Article 2 or Article 3, as the case may be. The inadequacy of the investigation and prosecution undertaken, if any, may well be a factor, a powerful factor, pointing to ineffectiveness of the civil remedy for compensation in the circumstances, but it is not decisive in itself or in all circumstances. In conclusion on this point of general principle, it would, in my view, be simplistic, and mistaken, to take the Nikolova and Velichkova jurisprudence as entailing an automatic obligation for this Court to examine on its full merits, substantive as well as procedural, a right-to-life case whenever there has been no adequate investigation and prosecution.", "The position regarding civil remedies in Northern Ireland The courts in Northern Ireland have at their disposal various procedural tools to establish the facts and, notably, to oblige witness attendance, to order disclosure and discovery of documents, and to manage evidence that is sensitive in terms of national security so as to find a fair balance between genuine security needs and a plaintiff’s legitimate interest in establishing the facts. The standard of proof required to establish liability is the civil one of proof on the balance of probabilities, not the stricter criminal or Convention standard of proof beyond reasonable doubt. As I understand it, the underlying logic in previous Northern Ireland cases, such as Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, is that the system of civil remedies in Northern Ireland (and indeed in the United Kingdom in general) is sufficiently well armed and strong to constitute, in principle, an effective means of establishing facts and liability and of obtaining adequate compensation, as appropriate, in relation to killings or serious ill-treatment allegedly committed by State agents. As a consequence – and this is in accord with the reasoning developed in Akdivar and Others – as regards a substantive complaint of unlawful killing under Article 2, the civil claim is in principle to be exhausted.", "It would have to be demonstrated, in a particular case before this Court, that the deficiencies in the process of investigation and of prosecution of perpetrators were so serious that the civil remedy was compromised to the point where it would be unreasonable to expect the applicant to exhaust it. Arguably such a situation could arise where, for example, as a result of delay key evidence had been lost or destroyed, key witnesses had died or become untraceable, and so on. A similar logic can be seen to have been applied in cases concerning other countries, but with a different result: in these cases, the system of civil remedies was considered to be such that, in the absence of an effective investigation, it did not offer any real chance of establishing either the facts relating to the death or liability on the part of State agents. The particular circumstances of the present case The Chamber found (at paragraph 122 of its judgment) that in the present case “[no] demonstrated factor ... can be considered to have deprived the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of the deaths ...”. The case file shows that the applicants are already well informed as regards the identity both of the authorities responsible for the planning of the operation and of the individual soldiers and police officers involved in the operation and then in the investigations.", "There is a wealth of information disclosed and available in relation to the circumstances impugned by the applicants. It cannot be said at this point that the bringing of the civil action by the applicants has been rendered ineffective in practice by reason of the alleged lack of adequate investigation and proper prosecution. As the Chamber’s judgment points out, “[w]hile the lapse of time would make it difficult for the civil court to piece together the evidence, any such attempt should in principle take place in a domestic court, not in an international forum”. The domestic civil action brought by the applicants is capable of enabling them to obtain the same kind of finding that they are seeking in the proceedings before this Court, namely a finding of unjustified killing by the public authorities whom they hold responsible, as well as the same kind of redress, namely an award of financial compensation. As a matter of general principle, subject, where applicable, to the specificities of the procedural protection afforded by virtue of Article 2 of the Convention, this is precisely the kind of situation that the rule of exhaustion of domestic remedies provided for under Article 35 § 1 is meant to cover.", "In Nikolova and Velichkova, as in a number of other similar cases, an already exhausted civil remedy granting compensation was held to be incapable of providing adequate redress for wilful ill-treatment by State agents resulting in death because of serious deficiencies in the completed investigation and criminal and/or disciplinary prosecution of the perpetrators. The most notable flaw being that the criminal and/or disciplinary proceedings brought against the perpetrators had ended with a result involving “a manifest disproportion between the gravity of the offence [found to have been committed] and the punishment imposed” (see, for example, Nikolova and Velichkova, cited above, §§ 62-63; and Fadime and Turan Karabulut, cited above, § 47; see also Gäfgen v. Germany [GC], no. 22978/05, §§ 123-25, ECHR 2010, in relation to conduct contrary to Article 3). Far from bringing the requisite procedural protection under Article 2, the outcome of the terminated investigative and prosecution process was judged to foster a sense of impunity on the part of the State agents responsible for the killing (see, for example, Nikolova and Velichkova, cited above, § 63 in fine). In that respect the present applicants’ Convention claim, unlike that in the above-mentioned cases, is premature “because, given the pending judicial review proceedings, the initiation of further relevant investigative procedures, including of a criminal and/or disciplinary nature, remains possible” (see paragraph 121 of this judgment), with the complaints made by the applicants before this Court, notably their outstanding procedural complaints, capable of being addressed and, if upheld, remedied at national level in that on-going process (see paragraphs 123-27).", "In particular, since “the pending judicial review action will review key aspects of the inquest against the procedural guarantees of Article 2 of the Convention”, “the Court ... [before knowing the results of that action,] cannot examine whether the inquest has been deprived, by prior investigative shortcomings or delay, of its ability to establish the facts and determine the lawfulness or otherwise of the deaths in question” (see paragraph 127 in fine). As the judgment points out (at paragraph 128 in fine), should the present applicants be dissatisfied with the progress or outcome of the various, as yet uncompleted, domestic procedures, it would be open to them to reintroduce before this Court both their substantive complaints and their outstanding procedural complaints under Article 2. Concluding remark It may doubtless appear somewhat anomalous that, twenty-three years after the deaths of the applicants’ relatives, the applicants’ substantive complaints and most of their procedural complaints under the Convention’s right-to-life clause can be legally characterised as “premature”. However, the position is so precisely because the innumerable and excessive delays in the inquest proceedings prevented the investigative process from beginning promptly and from being carried out with reasonable expedition. For this reason, even before the completion of the applicants’ civil action and their latest judicial review proceedings, the Court could not but find a procedural violation of Article 2 on the basis that the United Kingdom had, in relation to this requirement of promptness and reasonable expedition, failed in its obligation to the applicants to ensure, through the legal system in Northern Ireland, the effectiveness of the investigative process concerning the deaths of their relatives at the hands of the security forces.", "[1]. This is an opinion common to the present judgment and the judgment in Collette and Michael Hemsworth v. the United Kingdom, no. 58559/09, 16 July 2013 (hereinafter “the Hemsworth judgment”), both delivered on the same date." ]

[ "FIRST SECTION CASE OF LELIK v. RUSSIA (Application no. 20441/02) JUDGMENT STRASBOURG 3 June 2010 FINAL 03/09/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lelik v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 11 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "20441/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Nina Andreyevna Lelik (“the applicant”), on 10 April 2002. 2. The applicant was represented by Mr V.N. Voblikov, a lawyer practising in Bilibino, the Chukotka Region. The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk, representative of the Russian Federation before the European Court of Human Rights and then by their representative Mr G. Matyushkin.", "3. On 9 March 2007 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1942 and lives in Ryazan. 5. On 17 February 2000 the applicant filed with the Bilibinskiy District Court of the Chukotka Autonomous Region (“the District Court”) an action against the regional pension authorities and the district social security authority (Отделение Пенсионного фонда РФ по Чукотскому Автономному Округу и Отдел социальной защиты населения Администрации Билибинского района) for recovery of arrears of her old-age pension. She also requested to index-link the arrears. 6.", "As the District Court consistently failed to schedule a hearing, the applicant filed a complaint about its lack of action to the Supreme Court of Russia. On 19 October 2000 the Supreme Court in the final instance refused to consider the complaint on its merits as out of the court's competence. 7. The first hearing in the case was scheduled for 13 November 2000. 8.", "On 13 November 2000 the judge failed to appear, and the hearing was fixed for 19 January 2001. 9. On 9 January 2001 the District Court decided not to consider the applicant's complaints about the judge's inaction ruling that such a complaint could be entertained only by the Judicial Qualifications Board (Квалификационная коллегия судей). 10. On 19 January 2001 the hearing was adjourned until 22 March 2001 on account of the applicant's failure to appear.", "The applicant's counsel attended the hearing. 11. The Government submitted that on 16 February 2001 the applicant applied for supervisory review seeking to quash the above decision to adjourn the hearing on account of certain procedural flaws. The applicant submitted an application for supervisory review with the date shown as 2 February 2001. 12.", "On 22 March 2001 the District Court partly granted the applicant's claims. In the same hearing the applicant's counsel informed the court of her actual place of residence which differed from the one indicated in the original statement of claim. 13. On an unspecified date the applicant filed an appeal. She submitted that in her appeal she had complained, among other things, about the first-instance court's decisions to adjourn the hearings.", "14. The applicant's appeal was first fixed to be considered by the Chukotka Regional Court (“the Regional Court”) on 17 May 2001 but was re-scheduled for 19 July 2001. 15. On 19 July 2001 the Regional Court overturned the judgment on appeal and remitted the case for fresh examination to the District Court. The applicant's complaint about the adjournment decisions was not addressed.", "16. On 23 July 2001 the case was transferred to the Presidium of the Regional Court for consideration pursuant to the applicant's application for supervisory review of 16 February 2001. 17. On 1 August 2001 the application for supervisory review was rejected, and the case was returned to the District Court. 18.", "On 17 August 2001 the District Court fixed the first hearing for 5 December 2001. The court invited the applicant's counsel to provide the applicant's actual address. 19. On 28 August 2001 the applicant's counsel informed the District Court that the applicant resided at the address indicated in the statement of claim. 20.", "On 5 December 2001 the hearing was adjourned till 21 January 2002 on account of the applicant's failure to appear. The applicant's counsel attended the hearing. 21. On 18 January 2002 the applicant applied for supervisory review of the above decision to adjourn the hearing. 22.", "On 21 January 2002 the hearing had been adjourned till 26 February 2002 on account of the applicant's failure to appear. Her counsel attended the hearing, amended the claims and informed the court that the applicant resided in Ryazan. He was invited to provide the applicant's full address. 23. On 4 February 2002 the applicant applied for supervisory review of the above decision to adjourn the hearing.", "On 12 February 2002 the Presidium of the Regional Court called up the case. 24. On 9 October 2002 the application for supervisory review was rejected, and the case was returned to the District Court. 25. The applicant submitted that in December 2002 she had requested the District Court to inform her of the date of the next hearing but received no precise answer.", "26. On 14 May 2003 the applicant filed an amendment to the original statement of claim indicating a new group of respondents. 27. On 8 July 2003 the District Court held a hearing in presence of the applicant's counsel, in which it accepted the amended claims and adjourned. 28.", "On 28 November 2003 the applicant's counsel informed the court that the applicant wished to have the case heard in her absence. The hearing was adjourned till 25 December 2003 on account of the applicant's failure to identify the new respondents. 29. On 7 December 2003 the applicant notified the District Court that she had already determined the new respondents in her amendment to the statement of claim of 14 May 2003. 30.", "On 25 December 2003 the District Court granted the applicant's claims in part. 31. On 18 March 2004 the Regional Court heard the case on appeal and amended the judgment, awarding to the applicant a total amount of 40,879 roubles and 73 kopecks. II. RELEVANT DOMESTIC LAW 32.", "Until 14 November 2002 the civil-law matters were governed by the Code of Civil Procedure of the Russian Soviet Federative Socialist Republic of 1964 (“the old CCivP”). 33. Under Article 99 of the old CCivP, an action must be prepared for trial seven days after the action is lodged. An action brought against a State body must be examined ten days after it is lodged. 34.", "Under Article 284-1 of the old CCivP, an appeal court must examine an appeal ten days after it is filed. 35. On 14 November 2002 the old CCivP was replaced by the Code of Civil Procedure of the Russian Federation (“the new CCivP”). 36. Under Article 154-1 of the new CCivP an action must be examined two months after it is lodged.", "37. Under Article 348-1 of the new CCivP, an appeal court must examine an appeal one month after it is filed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 38. The applicant complained under Article 6 § 1 of the Convention of unreasonable length of proceedings.", "As far as relevant, this provision reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 39. The Court is satisfied that the first round of proceedings began on 17 February 2000 and ended on 19 July 2001. No proceedings were pending between 23 July and 1 August 2001 when the case was being examined at the supervisory instance (see paras. 13-14 above). The second round of proceedings began on 1 August 2001, was interrupted from 12 February to 9 October 2002 due to examination of the case on application for supervisory review (see paras.", "20-21 above), and ended on 18 March 2004. 40. The proceedings thus lasted 3 years and 5 months, where the case was considered twice at two levels of jurisdiction. A. Admissibility 41. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' submissions (a) The Government 41.", "The Government observed that the delays in the proceedings which had occurred between 17 February 2000 and 19 January 2001, 17 May and 19 July 2001 had been caused by the courts' insufficient staff numbers, the judges' other commitments and a significant case load. They also argued that the length of the proceedings could still be regarded as reasonable because the most significant delays had been caused by the applicant. In particular, the applicant repeatedly challenged the first-instance decisions both in appeal and supervisory review proceedings, did not appear in the hearings and had provided a false actual address, as well as changed her claims twice and delayed in indentifying of the respondent after amendment of her claims. They also contended that the case had been complex as it had required an accurate calculation of the awarded sum amounts. (b) The applicant 42.", "The applicant disagreed. She claimed that having retained a legal counsel, she had not been obligated by law to appear in the hearings to have her claims examined, that the case was not complex by nature and that she had been entitled to exercise her procedural rights by challenging the decisions she had disagreed with. She also stated that contrary to the Government's arguments, she had timely determined the respondent. 2. The Court's assessment 43.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In addition, only delays attributable to the State may justify a finding of a failure to comply with the \"reasonable time\" requirement (see, among other authorities, Zimmermann and Steiner v. Switzerland, 13 July 1983, p. 11, § 24, Series A no. 66; see also Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).", "(a) Complexity of the case 44. The Court finds that the case, which concerned recovery of old-age pension arrears with index-linking was not particularly complex. Consequently, the Court takes the view that an overall period of 3 years and 5 months could not, for this reason, be deemed to satisfy the “reasonable time” requirement in Article 6 § 1 of the Convention. (b) Conduct of the applicant 45. Insofar as the behaviour of the applicant is concerned, the Court recalls that on three occasions a court hearing was adjourned due to the applicant's failure to appear in hearings or to explain her absence, the aggregate length of the delay being 4 months and 2 weeks.", "Only a year into the proceedings did the applicant's counsel mention that her actual address differed from the one indicated in the statement of claim. He did not manage to provide the correct address until well into the second round of proceedings. As the domestic courts are procedurally required to verify reception of summonses prior to the hearing, they cannot be blamed for adjournment of hearings due to the applicant's failure to supply correct information. 46. As to the Government's argument that the applicant delayed the proceedings by amending her claims, the Court observes that this fact in itself does not appear to have led to a stay of the proceedings.", "It is also satisfied that the applicant identified the new respondents in a timely manner in her amendment to the statement of claim. 47. The Court is not convinced by the Government's contention that the applicant contributed to the length of the proceedings by challenging the first-instance court's decisions in the appeal and supervisory instances. It has been the Court's constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in the defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319-A).", "48. The Court thus finds that the applicant can be held responsible for 4 months and 2 weeks of delay in the proceedings. (c) Conduct of the authorities 49. As regards the conduct of the judicial authorities, the Court recalls that the domestic courts failed to fix a hearing for 9 months after the applicant lodged her claim, adjourned the first hearing and an appeal hearing for 2 months each due to the judge's other commitments and failed to schedule a hearing in the second round of proceedings for 8 months. The aggregate length of the delay thus constitutes 21 months.", "50. The Court reiterates that it is the States' duty to organise their judicial systems in such a way that their courts can meet the requirements of Article 6 § 1 (see Muti v. Italy, 23 March 1994, § 15, Series A no. 281-C). The manner in which a State provides for mechanisms to comply with this requirement – whether by way of increasing the numbers of judges, or by automatic time-limits and directions, or by some other method – is for the State to decide. If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be responsible for the resultant delay (see Price and Lowe v. the United Kingdom, nos.", "43185/98 and 43186/98, § 23, 29 July 2003). 51. In view of the above, the Court considers that the cited difficulties do not excuse the State from ensuring that the proceedings were dealt with within a reasonable time (see Kormacheva v. Russia, no. 53084/99, § 55, 29 January 2004). It finds that the State is thus responsible for 21 months of delay in the proceedings.", "(d) Stake for the applicant 52. The Court reiterates that certain types of cases, for example those concerning civil status and capacity or employment disputes, generally require particular diligence on the part of the domestic courts (see Bock v. Germany, 29 March 1989, p. 23, § 49, Series A no. 150, and Ruotolo v. Italy, 27 February 1992, p. 39, § 17, Series A no. 230-D). The Court finds this principle to be equally applicable to the present dispute as it concerned the payment of arrears of an old-age pension, which constituted the principal source of income for the applicant (see Tusashvili v. Russia, no.", "20496/04, § 25, 15 December 2005). (e) Conclusion 53. Regard being had to all the circumstances of the case, the relative simplicity of the case and its importance to the applicant, the substantial and repetitive delays attributable to the authorities, the Court find that there was a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 54.", "The applicant complained also that in Russia there was no effective remedy against the excessive length of proceedings. She relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 55. The Government contested that argument. They submitted that it was open to the applicant to lodge an appeal to the Judicial Qualifications Board, challenge the judge or claim compensation for non-pecuniary damage. 56.", "The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). 57. The Court reiterates that according to its case-law there is no effective remedy under Russian law capable of affording redress for the unreasonable length of civil proceedings (see, among many other authorities, Kormacheva, cited above, §§ 61-62; Kuzin v. Russia, no. 22118/02, §§ 42-46, 9 June 2005; Bakiyevets v. Russia, no.", "22892/03, § 53, 15 June 2006; Markova v. Russia, no. 13119/03, § 31, 8 January 2009; and Zaytsev and Others v. Russia, no. 42046/06, § 48, 25 June 2009). 58. The Court notes that in the present case the Government did not provide any new argument as to whether and how the applicant could obtain effective relief – either preventive or compensatory – by having recourse to the suggested measures.", "It was not suggested that these remedies could have expedited the determination of the applicant's case or provided her with adequate redress of the delays that had already occurred (see Kormacheva, cited above, § 61). Nor did the Government supply any example from domestic practice showing that, by using the means in question, it was possible for the applicant to obtain such a relief (see Kudla, cited above, § 159). 59. The Court finally observes that in the present case the applicant attempted to rectify the situation at the domestic level by complaining of the court's inaction in her appeal as well as by bringing separate complaints, but the courts proved unable to provide her with relief. 60.", "Accordingly, the Court holds that in the present case there has been a violation of Article 13 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 61. The applicant also complains under Article 1 of Protocol No. 1 that by failing for years to reach a decision in her case, the national authorities unlawfully interfered with her possessions.", "62. The Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 63.", "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 64. The applicant claimed non-pecuniary damage in the amount of 30,000 euros (EUR). 65. The Government contested this amount as unsubstantiated and disproportionate to the damage allegedly incurred.", "66. Referring to its established case-law, the Court finds that the applicant suffered some distress and frustration caused by the unreasonable length of the proceedings. Deciding on an equitable basis, the Court awards EUR 1,500. B. Costs and expenses 67.", "The applicant also claimed reimbursement of the costs and expenses incurred in the proceedings before the Court. In particular, she claimed EUR 1,230 as remuneration for her representative in accordance with the contract of 9 April 2002. 68. The Government made no specific comment on the amount claimed. 69.", "The Court notes that under the contract of 9 April 2002 the applicant agreed to pay her representative a fee amounting to EUR 1,230 for his representation before the Court, provided the representative duly performed his contractual obligations until the delivery by the Court of the final judgment concerning the present application and subject to payment by the Russian Federation of the just satisfaction award, should it be granted by the Court. The contract thus clearly stipulated that the applicant was to pay her representative EUR 1,230. The Court is satisfied that from the standpoint of the Convention these costs are real. The fact that the applicant was not required to pay the fee in advance does not affect this conclusion (see Tusashvili, cited above, § 37). 70.", "Further, it has to be established whether the costs and expenses incurred by the applicant for legal representation were necessary. The Court notes that this case was not particularly complex and part of the application is declared inadmissible. It therefore finds excessive the amount which the applicant claims under this head. 71. The Court awards the sum of EUR 825, together with any value-added tax that may be chargeable.", "C. Default interest 72. 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. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint concerning unreasonable length of proceedings admissible and the remainder of the application inadmissible; 2. Holds unanimously that there has been a violation of Article 6 § 1 and Article 13 of the Convention; 3.", "Holds by six votes to one (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 825 (eight hundred and twenty five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 3 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FOURTH SECTION CASE OF KADŁUCZKA v. POLAND (Application no. 31438/06) JUDGMENT STRASBOURG 2 February 2010 FINAL 02/05/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kadłuczka v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 January 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "31438/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jan Kadłuczka (“the applicant”), on 21 July 2006. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. The applicant alleged a breach of Article 6 § 1 of the Convention in respect of the proceedings before the Polish-German Reconciliation Foundation.", "4. On 24 January 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1931 and lives in Kraków. A. Historical background 6. The realities of the international situation following the end of the Second World War prevented the Republic of Poland from asserting any claims arising out of persecution of its citizens by Nazi Germany, including as forced labourers. 7.", "In the period immediately following the Second World War Poland did not conclude a specific agreement with Germany regarding the issue of reparations. It relied on the Potsdam Agreement of 1 August 1945, concluded by the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics. 8. On 27 February 1953 the London Agreement on Germany’s External Debts (London Debt Agreement) was concluded by the United States of America, Great Britain, France and the Soviet Union. Under this Agreement, consideration of claims arising out of the Second World War by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich or agencies of the Reich was deferred until final settlement of the issue of reparations.", "9. On 23 August 1953, a day after a similar declaration by the Government of the Soviet Union, the Government of Poland declared that it renounced any claims against Germany in respect of war reparations as of 1 January 1954. In a declaration of 27 September 1969, made at the United Nations, the Government of Poland clarified that the renouncement of 1953 did not affect individual claims arising out of unlawful acts. 10. In 1972 the Federal Republic of Germany made an ex-gratia payment of DM 100 million to the Polish Government for the victims of pseudo-medical experiments.", "11. It was only after the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the so‑called Two‑Plus‑Four Treaty) and the conclusion of two treaties between the Federal Republic of Germany and the Republic of Poland in 1990[1] and 1991[2] that the issue of persons persecuted by the Nazi regime was addressed in the bilateral Agreement of 16 October 1991 (see paragraph 30 below). 12. The issue of compensation for slave and forced labour during the Second World War was addressed in the Joint Statement of 17 July 2000 and the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (see relevant law below). B.", "The circumstances of the case 13. In June 1942 the applicant was deported from Grójec, which was then part of the Polish territories annexed by the Third Reich, to Wadów, located on the territory of the General Government (Generalna Gubernia, an administrative entity established by the German authorities in occupied Poland). He worked as a forced labourer on a German farm in Wadów until the liberation in January 1945. 14. In August 2001 the applicant applied to the “Polish-German Reconciliation Foundation” (“the Foundation” or “the Polish Foundation”) for payment of compensation for his forced labour during the war.", "That request was made under the scheme for slave and forced labourers (“the second compensation scheme”). On 23 July 2004 the Foundation’s Verification Commission dismissed the applicant’s claims. It found that the applicant’s forced labour did not entitle him to receive benefits under any of the categories for eligibility. The applicant appealed on 31 August 2004. He argued that he had worked on a German farm and submitted three documents in support of his claim.", "The first document was a certificate issued by the Ruszcza Catholic Parish on the basis of its parish records. The certificate stated that between 1942 and 1945 there had been a farm in Wadów owned by Z.K. (married name: Hochsman) and administered by W. Hochsman, a German national. The second document was a certificate issued by the Wadów Agricultural Society. It confirmed that there had been a farm in Wadów owned and administered by a German national, W. Hoffman.", "The last document was issued by the Kraków Regional Agrarian Office and certified that in 1945 the farm in Wadów had been acquired by the State in the context of agrarian reform. 15. On 21 December 2004 the Foundation’s Appeal Commission upheld the refusal. It found that the applicant had been deported from Grójec in Upper Silesia to Wadów in the General Government. In the case of persons deported from one administrative entity to another, it was necessary to establish that they had been subjected to forced labour on a German farm or for a German company.", "According to the Appeal Commission, the applicant did not adduce documents demonstrating that the farm in Wadów had been under German administration or that its owners had belonged to the List of German Nationals (Deutsche Volksliste; niemiecka grupa narodowościowa). In particular, the Appeal Commission refused to accept a certificate issued by the Ruszcza Catholic Parish as relevant proof, since it had not been based on archival documents. Similarly, it did not consider as relevant the document issued by the Agricultural Society, as it had been based on witness statements. Other documents produced by the applicant did not confirm that the farm in Wadów had been under German administration. 16.", "The applicant strongly contested the Verification Commission’s findings. He turned to various authorities and institutions, seeking to challenge those findings. In 2006 he complained to the Ombudsman about the Foundation’s refusal to grant him compensation. 17. Following the Ombudsman’s inquiry, the Foundation’s Appeal Commission re-examined the applicant’s claims.", "However, on 29 May 2006 it again refused them. First, the Appeal Commission stated that section 11 of the German Foundation Act (“the GFA”), which set out the categories of eligible persons, was not directly applicable to the applicant. However, following the agreement made in the framework of the so-called “openness clause” (tzw. klauzula otwartości; section 9 § 8 of the GFA) the Polish Foundation with the approval of the German Foundation agreed to extend the category of eligible claimants to other groups, including relocated persons (osoby dyslokowane). That category included forced labourers who had been deported within the territory of the Polish State and crossed the border between the administrative entities established by the occupying authorities.", "The additional condition for relocated persons was to produce documents which attested that they had worked on a farm under German administration or for a German company. Relevant evidence to that effect should have been produced on the basis of the local archives, indicating which documents had been relied on. 18. The Appeal Commission underlined that the applicant had not established in a requisite manner that the farm in question had been under German administration. It could not take into consideration the certificate issued by the Wadów Agricultural Society as it had been based on witness statements.", "The applicant was informed that documents based on witness statements were not regarded as relevant evidence. Furthermore, the Appeal Commission did not consider the certificate issued by the Ruszcza Catholic Parish as sufficient proof that the farm in question had been under German administration. That certificate had been issued on the basis of the parish records but without providing further details about the latter. Similarly, the document issued by the Regional Agrarian Office was not considered relevant. II.", "RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional provisions 19. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states: “The Republic of Poland shall respect international law binding upon it.” Article 45 § 1 of the Constitution reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Chapter VIII of the Constitution contains provisions related to the judiciary. Article 175§ 1 of the Constitution provides: “The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.” Article 177 of the Constitution states: “The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.” Article 184, in so far as relevant, provides: “The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.” B. The Agreement of 16 October 1991 and the establishment of the Polish-German Reconciliation Foundation (first compensation scheme) 20.", "On 16 October 1991 the Governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German Government declared that, prompted by humanitarian considerations, it was prepared to contribute DEM 500 million for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the Government of Poland with a view to providing financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to determine the necessary criteria for the granting of payments, having regard both to serious damage to the victims’ health and to difficulties in their current financial situation. The Government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country.", "21. Subsequently, on 27 November 1991, the Minister–Head of the Cabinet Office (Minister – Szef Urzędu Rady Ministrów) acting as a Founder[3], made a declaration before the State Notary on the establishment of the Foundation. He declared that, acting on the initiative of the Government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation’s aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation’s capital fund consisted of DEM 500 million, contributed by the German Government to the Polish Government.", "The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. In principle, supervision of a foundation’s activities is exercised by the regional governor (Wojewoda) or the competent minister. 22. The statutes of the Polish-German Reconciliation Foundation were drafted and subsequently registered by the Warsaw District Court on 24 February 1992. On that date the Foundation began its activities.", "Under paragraph 6 of the statutes, the Foundation’s primary aim was to render direct financial assistance to those victims of Nazi persecution whose health had been seriously damaged and who were in a difficult financial situation as a result of that persecution. 23. The Foundation’s organs were the Supervisory Board (Rada Nadzorcza) and the Management Board (Zarząd). The members of those organs were appointed and dismissed by the Founder (government minister) who exercised full control in this respect. The two other organs of the Foundation were the Verification Commission (Komisja Weryfikacyjna), and the Appeal Commission (Odwoławcza Komisja Weryfikacyjna).", "C. Compensation scheme for slave and forced labourers (second compensation scheme) 24. From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace.", "The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland[4]. 25. The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act.", "26. According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace. 27. Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”; the German Foundation Act).", "It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. 28. The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide: “Preamble Recognising that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations, that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it, that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility, that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments, that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime, the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations.", "(...) Section 1 – Establishment and headquarters (1) A legally recognised Foundation with the name ‘Remembrance, Responsibility and Future’ shall be established under public law. (...) Section 2 – Purpose of the Foundation (1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. (...) Section 9 – Use of Foundation Resources (...) (8) In concert with the Board of Trustees, the partner organizations may subdivide the category of forced labourers, within its quota, in accordance with Section 11, Paragraph 1, Sentence 1, Number 1, insofar as this involves persons interned in other places of confinement, as well as affected persons within the meaning of Section 11, Paragraph 1, Sentence 1, Number 2, into subcategories depending on the severity of their fate and may set correspondingly gradated maximum amounts. This shall also apply to the eligibility of legal successors. (...) Section 10 – Distribution of resources through partner organisations (1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations.", "The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. (...) Section 11 – Eligible persons (1) Eligible under this Law are: 1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour; 2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; (...) (2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant’s eligibility may be substantiated in some other way.", "Section 19 – Appeals Process The partner organizations are to create appeals organs that are independent and subject to no outside instruction. The appeals process itself is to be free of charge. However, costs incurred by the applicant are not to be reimbursed.” D. Judgment of the German Federal Constitutional Court of 28 June 2004 29. The Federal Constitutional Court examined a constitutional complaint against various provisions of the GFA which had been filed, among others, by a former Italian military internee and a civilian who had been subjected to forced labour[5]. The complainants alleged, inter alia, that prior to the entry into force of the GFA they had had claims for compensation for forced labour against the Federal Republic of Germany, under German civil law in conjunction with international public law.", "They contended that the exclusion of judicial review of decisions by the International Organisation for Migration (one of the partner organisations) had violated their right to an effective remedy under Article 19 § 4 of the German Basic Law. Furthermore, they argued that the exclusion of former prisoners of war from the ambit of compensation under the Foundation Act was discriminatory. 30. On 28 June 2004 the Federal Constitutional Court held that the complaint was partly admissible, but unfounded. Referring to the Hague Convention on the Laws and Customs of War on Land (“The Hague Convention”) the court held that international public law had not established individual claims for compensation for forced labour.", "It noted, however, that it was not excluded that national law might establish such claims, but that in such a case the legislator enjoyed wide discretion. The court held further that the exclusion by section 11 § 3 of former prisoners of war from the scope of those eligible for benefits under the Foundation Act had not been discriminatory, since under the Hague Convention prisoners of war could be compelled to perform labour. In this respect the court observed that the legislator was allowed to distinguish, when awarding compensation, between victims of general hardships caused by the war and victims of particular ideological persecution by the Nazi regime, especially as the funds of the Foundation were limited. 31. In respect of the exclusion of judicial review by the Foundation Act, the Federal Constitutional Court found that Article 19 § 4 of the Basic Law required that a right did in fact exist, whose alleged violation could be examined by the courts.", "The court concluded that the legislator was free to decide not to establish an individual’s claims vis-à-vis a public-law foundation and to exclude judicial review in this connection. E. Implementation of the second compensation scheme by Poland 32. On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million.", "On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000. 33. On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the Polish‑German Reconciliation Foundation (“the partnership agreement”).", "Under its terms the Polish‑German Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000. 34. The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1).", "A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of payment awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3). 35. The Agreement of 16 February 2001 was accompanied by three annexes. Annex no.", "3 contained a declaration by the Polish government with regard to responsibility for the disbursement of payments. The relevant parts provide: “Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government’s efforts, former slave and forced labourers will receive in total DEM 1,812 thousand million, which constitutes a very positive outcome to the negotiations. The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly.", "To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.” 36. The statutes of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001. 37. The amended statutes stipulated that the Foundation was to disburse payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation’s decisions in individual cases were to be taken on the basis of internal regulations.", "A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5). 38. Pursuant to paragraph 20 of the amended statutes, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation’s management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2).", "39. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission. Its president and members are appointed and dismissed by the Foundation’s management board, having consulted the supervisory board. The Appeal Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statutes stipulated that the decisions of the Appeal Commission were final (paragraph 23.3).", "40. On 31 December 2006 the Foundation terminated the disbursement of payments under the second scheme. F. Case-law of the Polish courts 41. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted Resolution no.", "III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation’s decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant’s eligibility had been established but the benefit was not paid, a claim could arise under civil law. 42.", "In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that: “The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.” It further observed: “There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.” G. The Poznań Court of Appeal’s decision of 14 January 2005, no. I ACz 3043/04 43.", "The Poznań Court of Appeal examined an interlocutory appeal against a first-instance judicial decision rejecting a plaintiff’s claim against the Foundation based on Article 189 of the Code of Civil Procedure. It quashed the decision under appeal and remitted the case. The Court of Appeal held that a decision determining whether the Foundation had been obliged to pay benefits to a claimant was a decision on the merits of a claim. Accordingly, it should have been determined by way of a judgment. H. The Supreme Court’s Resolution of 27 June 2007, no.", "III CZP 152/06 44. On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation[6]. The Supreme Court held that: “The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.” In the reasons for its Resolution the Supreme Court found, inter alia, that: “The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted.", "The relevant funds were allocated and the disbursement of payments has been finally concluded. (...) There is no doubt that the current state of affairs resulting from the relevant case‑law, under which those persons interested in challenging before a court the Foundation’s refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...) The need for extensive interpretation of the individual’s access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no.", "IV CSK 312/06, unpublished). The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.” I. The Constitutional Court’s decision of 14 November 2007 in case no. SK 53/06 45.", "A certain S.K. filed a constitutional complaint with the Constitutional Court after the administrative court rejected his appeal against inactivity of the Foundation, stating that it did not have jurisdiction. He challenged the constitutionality of certain provisions of the Law of 25 July 2002 on the Structure of Administrative Courts and of the Law of 30 August 2002 on Procedure before Administrative Courts, which delineated the jurisdiction of the administrative courts. On 14 November 2007 the Constitutional Court discontinued the proceedings on procedural grounds. It found that the claimant had not obtained a “final decision” within the meaning of Article 79 of the Constitution, since he had mistakenly seized the administrative courts and not the civil courts to pursue his appeal against the Foundation’s decision.", "The Constitutional Court relied on the constitutional presumption in favour of jurisdiction of the civil courts and the Supreme Court’s Resolution of 27 June 2007. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 46. Relying on Articles 1 and 6 of the Convention, the applicant complained that he had been deprived of a fair trial in the proceedings before the Foundation’s bodies. The Court considers that the applicant’s complaint concerns the lack of access to a court in respect of his claims raised before the Polish Foundation and falls to be examined under Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.", "...” A. Applicability of Article 6 § 1 1. The parties’ submissions 47. The Government argued that Article 6 § 1 of the Convention was not applicable to proceedings before the Polish Foundation in respect of the second compensation scheme. They submitted that there had been no “dispute” over a “right” which had been recognised under the Polish or German law. Nevertheless, the Government claimed that the civil disputes which might have arisen between the Foundation and its beneficiaries fell within the scope of “civil rights”, since the civil courts had jurisdiction to examine such disputes.", "48. The applicant did not comment. 2. The Court’s assessment (a) Principles deriving from the Court’s case-law 49. The Court reiterates that, according to the principles laid down in its case‑law, it must first ascertain whether there was a “dispute” (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether this “right” is also protected under the Convention (see, inter alia, Neves e Silva v. Portugal, 27 April 1989, § 37, Series A no.", "153-A). 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 (see, among other authorities, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV; Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000-X, and Markovic and Others v. Italy [GC], no.", "1398/03, § 93, ECHR 2006‑...). Lastly, the right must be a “civil” right. (b) Application of the above principles to the present case 50. The Court recalls that in the Woś judgment (see, Woś v. Poland, no. 22860/02, ECHR 2006‑VII) it examined a similar complaint in respect of the first compensation scheme, set up on the basis of the bilateral Polish‑German agreement of 16 October 1991 and found Article 6 § 1 applicable to the proceedings before the Polish-German Reconciliation Foundation.", "51. In contrast, the present case concerns the second compensation scheme, which was established following multilateral negotiations with a view to providing compensation to slave and forced labourers and other victims of the National Socialist period, primarily from central and eastern Europe. The agreement reached in the negotiations, in particular in respect of the categories of persons who were eligible and the establishment of the German Foundation as a means of providing funds to victims, was subsequently incorporated in the German Foundation Act of 2 August 2000. Section 10 of the Act stipulated that partner organisations, including the Polish Foundation, were entrusted with evaluation of claims and disbursement of payment to eligible claimants. The same provision stipulated that the German Foundation was neither authorised nor obligated in respect of the approval and disbursement of payments by the partner organisations.", "The particular feature of the second compensation scheme was that the eligibility conditions had been specified in the GFA, while at the same time the examination of the relevant applications was to be carried out by the partner organisations, including the Polish Foundation. The Court considers that for all practical purposes, decisions to qualify applicants as coming under a particular eligibility category and to grant payments in respect of the claimants who resided in Poland were taken by the Polish Foundation (see Woś v. Poland (dec.), no. 22860/02, § 66, ECHR 2005‑IV; Jakowicz v. Poland (dec.), no. 16778/02, § 76 in fine, 13 October 2009). The Court notes that the German Foundation carried out random checks of the decisions taken by the Polish Foundation, but in its view this does not alter the conclusion that the Polish Foundation played the main role in the process.", "In any event, there is no evidence that the decisions in respect of the applicant’s claims were reviewed or altered by the German Foundation. 52. In the Woś judgment the Court held that the Convention imposes no general obligation on the Contracting States to provide redress for wrongs inflicted in the past under the general cover of State authority (see also, mutatis mutandis, Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004‑IX). This principle applies to the Federal Republic of Germany in respect of wrongs or damage caused by the German Reich (see Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (A.N.R.P.)", "v. Germany (dec.), no. 45563/04, 4 September 2007; and Ernewein and Others v. Germany (dec.), no. 14849/08, 2 May 2009) but it is even more relevant for third States, like Poland, who bear no responsibility in connection with wrongs inflicted by a foreign occupying force or another State (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 124, ECHR 2004‑V; Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 77, ECHR 2005‑V).", "53. However, the Court recalls that if a compensation scheme were to be established, the substantive regulations which determined the eligibility conditions for any compensation would in principle fall outside the Court’s jurisdiction, unless the relevant conditions were manifestly arbitrary or blatantly inconsistent with the fundamental principles of the Convention (see Woś v. Poland, cited above, § 72). In other words, when a State decides to compensate the past wrongs for which it bore no responsibility, it enjoys a significant discretion (grand pouvoir d’appreciation) in determining the beneficiaries and the modalities of any compensation scheme and, in principle, no challenge to the eligibility conditions as such may be allowed (see Maltzan and Others, cited above, § 77; Epstein and Others v. Belgium (dec.), no. 9717/05, ECHR 2008‑... (extracts)). 54.", "The Court observes that the compensation scheme established under the GFA concerned claims of forced labourers and other victims of Nazi Germany (see section 2 of the GFA on the purpose of the German Foundation). As those claims date back essentially to the Second World War there could be no question of the Polish State’s responsibility for the wrongs committed during that period. It is clear that the Polish State have no obligations of any kind to redress the wrongs inflicted by another State as its citizens were victims and not perpetrators (see Woś v. Poland (dec.), cited above, § 85). 55. In the context of the present case, the Court underlines that the substantive eligibility conditions under the second scheme were defined in the GFA and had to be applied as such by the partner organisations, including the Polish Foundation.", "It follows that while processing the applications the Polish Foundation was bound to follow the substantive criteria as specified in the GFA and had no power either to review its reasonableness or to unilaterally modify or extend them. Thus, the Polish Foundation and, a fortiori, the Polish State cannot bear responsibility in cases where an applicant, due to the scope of the substantive eligibility conditions as such, was not included in the group of persons entitled to certain benefits. The Court emphasises that the Polish Foundation exercised only a certain measure of discretion when assessing the facts of individual cases and the evidence submitted by the claimants. Its assessment of those elements was decisive for the outcome of the proceedings before the Foundation. The Court considers that the responsibility of the Polish State may be engaged exclusively as regards those cases where the dispute concerns the application of the eligibility conditions to the facts of individual cases in the area falling within the Foundation’s margin of discretion.", "Accordingly, in each case it is necessary to determine whether a claimant challenges the eligibility conditions or the assessment of facts and evidence by the Polish Foundation and whether that assessment remained within the Polish Foundation’s margin of discretion. 56. Turning to the circumstances of the present case, the Court notes that the applicant belonged to the category of “relocated persons” who were eligible for benefits provided that they had worked for a German company or on a German farm. The applicant claimed before the Foundation that he had worked on the farm in Wadów which had been under German administration and run by a certain W. Hochsman. In order to substantiate his claim the applicant submitted a certificate issued by the Ruszcza Catholic Parish, a certificate issued by the Wadów Agricultural Society and the resolution concerning the nationalisation of the farm in Wadów.", "However, the Foundation held that those documents did not duly demonstrate that the applicant had worked on a farm under German administration. 57. The essence of the applicant’s claim is that the Polish Foundation wrongly considered that he had not worked on a German farm and, consequently, was not eligible for benefits. In the present case the thrust of the applicant’s complaint is directed against the Polish Foundation’s erroneous assessment of the facts underlying his claim and the resultant flawed application of the eligibility conditions to his case (compare and contrast Jakowicz v. Poland (dec.), cited above, § 80). In the case of Jakowicz the Foundation dismissed the applicant’s claims, which went beyond the scope of the substantive eligibility conditions and as such were outside the Foundation’s remit.", "By contrast, in the present case the Foundation refused the applicant’s claims while exercising its discretion as to the assessment of relevant facts which had a direct bearing on the determination of the applicant’s eligibility status. Thus, the present case can be distinguished from the Jakowicz case on the ground that it concerned a dispute as to the assessment of relevant facts and not a challenge to the substantive eligibility conditions. Accordingly, the Court finds that the dispute arose between the applicant and the Foundation as regards the application of the eligibility conditions to his case. 58. The Court has next to determine whether the right to receive payment from the Polish Foundation on account of forced labour or other form of persecution was recognised, at least on arguable grounds, under domestic law.", "The Court recalls that in the case of Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (cited above), concerning the second compensation scheme, it examined the complaints of former Italian POWs about the exclusion of judicial review in respect of decisions rendered by the International Organization for Migration (one of the partner organisations). The Court found that as the applicants (former POWs) had been clearly excluded from benefits under the German Foundation Act they could not claim to have had a right to compensation. On that ground, it distinguished the case from Woś and held that Article 6 was not applicable to the facts of that case. 59. The Court considers that the present case is, in turn, distinguishable from the Associazione Nazionale Reduci decision, in that it concerns the arguable claim of a person subjected to forced labour whose request was dismissed for failure to duly establish the existence of a farm under German administration.", "In contrast, the Associazione Nazionale Reduci case dealt with persons who had been expressly excluded from the ambit of the second compensation scheme on account of their undisputed POW status, and thus no question of a right to compensation could arise. 60. The Court notes that international public law does not establish individual claims for compensation for forced labour (see Associazione Nazionale Reduci decision which referred to the judgment of the Federal Constitutional Court of 28 June 2004). Such claims could be established exclusively through domestic law, and in such a case the legislator enjoys a wide margin of discretion, as noted above. In this respect the Court observes that the conditions and procedures with which a claimant had to comply before a payment could be awarded by the Polish Foundation were first agreed in the course of multilateral negotiations, then laid out in the GFA and subsequently transposed into the regulations binding on the Foundation via the Partnership Agreement of 16 February 2001 and any subsequent agreements concluded in the framework of the so-called openness clause.", "The Polish Foundation’s statutes were subsequently amended with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001. Thus, the Foundation’s regulations stipulated the conditions which had to be fulfilled by a person seeking benefits. It is noteworthy that the Supreme Court in its Resolution of 27 June 2007 found that the basis of the rights of a person seeking payment from the Polish Foundation were the Foundation’s statutes, the rules of the Verification Commission and the relevant provisions of the GFA. The Court is mindful of the particular character of the legal regime governing the second compensation scheme which defined the categories of eligible claimants. Nevertheless, it finds that the Polish Foundation’s regulations could be considered to create a right for a claimant arguably fulfilling the relevant eligibility conditions to claim compensation from the Foundation (see, mutatis mutandis, Woś v. Poland (dec.), cited above, § 83).", "61. The Court notes that the payments at issue were voluntary in the sense that the States were free to establish the scheme and to determine the scope of its beneficiaries. However, once such general scheme has been adopted and once a claimant could be reasonably considered to have complied with the eligibility conditions stipulated in the GFA and in the Foundation’s regulations, he or she had a right to be awarded payment by the Foundation (see Rolf Gustafson v. Sweden, 1 July 1997, § 40, Reports 1997‑IV and Woś v. Poland, cited above, § 75). The Court points out that in the somewhat similar area of social security and welfare benefits, many domestic legal systems provide for those benefits to be paid - subject to the fulfilment of the conditions of eligibility - as of right (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005‑X, § 51).", "In conclusion, the Court finds that the Polish Foundation’s bodies had thus to determine a dispute concerning a right asserted by the applicant. 62. As to the “civil” character of the right asserted by the applicant, the Court reiterates that the concept of “civil rights and obligations” is not to be interpreted solely by reference to the respondent State’s domestic law. Article 6 § 1 of the Convention applies irrespective of the status of the parties, the character of the legislation which governs how the dispute is to be determined and the character of the authority which is invested with jurisdiction in the matter (see, among other authorities, Georgiadis v. Greece, 29 May 1997, § 34, Reports 1997-III). 63.", "The Court reiterates that in the Woś judgment, which concerned similar claims under the first compensation scheme, it held that those claims could be considered “civil” within the meaning of Article 6 § 1 (see Woś v. Poland, cited above, § 76). In reaching that conclusion, the Court had regard, inter alia, to the similarities between the compensation claims asserted before the Foundation and disputes over entitlement to social security and welfare benefits, which generally fall within the scope of Article 6 (see Mennitto v. Italy [GC], no. 33804/96, § 28, ECHR 2000‑X; Tsfayo v. the United Kingdom, no. 60860/00, § 39, 14 November 2006). 64.", "Further, the Court notes that the Supreme Court in its resolution of 27 June 2007, referring extensively to the Woś judgment, found that a claim against the Foundation was to be considered a “civil” claim in a formal sense for the purposes of establishing court jurisdiction. The Court consequently finds that the applicant’s right to claim compensation from the Foundation on account of his forced labour could be considered “civil” for the purposes of Article 6 § 1 of the Convention. For the above reasons the Court finds that the right to compensation asserted by the applicant under the second compensation scheme is a civil right within the meaning of Article 6 § 1 of the Convention and that this provision is applicable to the proceedings before the Foundation in the applicant’s case. B. Exhaustion of remedies 1. The parties’ submissions 65.", "The Government argued that the applicant had failed to exhaust relevant domestic remedies as he had never challenged the Foundation’s decisions in a domestic court. The applicant could have requested to have his claims determined in civil proceedings relying on Article 189 of the Code of Civil Procedure, having regard to the fact that his claims were related to property rights and that the Polish Foundation operated under private law. The Government invoked the decision of the Poznań Court of Appeal of 14 January 2005, no. I ACz 3043/04 in order to refute the applicant’s assertion that judicial review of the Foundation’s decisions had been excluded. The Court of Appeal held that a decision determining whether the Foundation had been obligated to pay benefits to a claimant was a decision on the merits of a claim and should be examined by the court as such.", "Accordingly, in the Government’s view, the Court of Appeal’s decision confirmed that the determination of the right to receive payment from the Foundation could have been pursued under Article 189 of the Code of Civil Procedure. 66. The Government further underlined that the Supreme Court’s Resolution of 27 June 2007 confirmed their earlier submission that judicial review of the Foundation’s decisions had been available to claimants. Accordingly, all persons seeking benefits from the Foundation could have contested its decisions before the civil courts. The applicant should have resorted to that remedy before he filed his case in Strasbourg.", "In the Government’s view, the said Resolution confirmed that the right to appeal against the Foundation’s decisions stemmed directly from the Constitution and the Code of Civil Procedure. 67. Secondly, even assuming that his civil suit had been rejected, the applicant could have availed himself of a constitutional complaint. In his constitutional complaint the applicant, who maintained that the right to receive payment from the Foundation was of a civil character, could have raised the question of compatibility of Articles 1 and 2 of the Code of Civil Procedure with Article 45 of the Constitution. The Government drew an analogy between the present case and the situation which obtained in the Constitutional Court’s judgment of 10 July 2000 (case no.", "SK 12/99). In that case, a student whose claims against a university had been rejected by civil courts for lack of jurisdiction lodged a constitutional complaint, raising the question of the compatibility of Articles 1 and 2 of the Code of Civil Procedure with Article 45 of the Constitution. The Constitutional Court ruled that Article 1 of the Code of Civil Procedure, interpreted as not including in the notion of “civil case” certain pecuniary claims stemming from an administrative decision, was incompatible with Article 45 of the Constitution. Furthermore, the Government argued that the decision of the Constitutional Court of 14 November 2007 in case no. SK 53/06 confirmed that the applicant should have instituted proceedings against the Foundation before the civil courts.", "68. The applicant claimed that he had exhausted all available remedies. 2. The Court’s assessment 69. The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no.", "25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI). 70. Nevertheless, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient.", "The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 142, ECHR 2006‑...). 71. The Court has first to determine whether the applicant was required to pursue his claims against the Foundation in a civil court.", "The Government, relying on the Poznań Court of Appeal’s decision of 14 January 2005, contended that such a possibility had been open to the applicant. In their view, this assertion was further confirmed by the Supreme Court’s Resolution of 27 June 2007. The Court observes, however, that the Supreme Court in its authoritative decision, given by a panel of seven judges, stated firmly that, prior to its Resolution, interested persons had been deprived of the possibility of challenging the Foundation’s decisions in a court. The Supreme Court found that the prevailing trend in the case-law of the civil courts was for exclusion of judicial review in respect of those decisions. It noted that the Poznań Court of Appeal’s decision of 14 January 2005 and the Szczecin Court of Appeal’s decision of 12 July 2006 took a different approach.", "However, those decisions did not affect the Supreme Court’s conclusion as to the earlier lack of availability of judicial review. The Court notes that it was only the Supreme Court’s Resolution which, having regard, among others, to the Woś judgment, reinterpreted the notion of a “civil case” and acknowledged that such claims could be heard by civil courts. Accordingly the Court finds that prior to 27 June 2007 the availability of judicial review in respect of the Foundation’s decisions had not been sufficiently established and that the applicant could not be reproached for failing to institute civil proceedings against the Foundation (see Woś v. Poland, cited above, § 106). 72. The Government lastly contended that, in any case, the applicant should have availed himself of a constitutional complaint.", "The Court has accepted that at the date of the lodging of his application in Strasbourg, i.e. on 21 July 2006 the applicant was not required to pursue his claims before the civil courts as – in view of the settled case-law – such a course of action was bound to fail. At the same time, in order to file a constitutional complaint a claimant is obliged to obtain a final decision from a court or an administrative authority (see Article 79 of the Constitution). More importantly, the Court points out that a constitutional complaint could be recognised as an effective remedy only where the individual decision which allegedly violated the Convention had been adopted in direct application of an unconstitutional provision of national legislation (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003, and Pachla v. Poland (dec.), no.", "8812/02, 8 November 2005). However, at the heart of the present case lies the judicial interpretation of the relevant legislative provisions on court jurisdiction, which resulted in a finding that neither the civil nor the administrative courts could hear claims against the Foundation (see Woś v. Poland, cited above, § 95). As stated above, that problem of judicial interpretation was eventually resolved by the Supreme Court’s Resolution of 27 June 2007. The Court notes that the issue of whether civil or administrative courts should hear such claims was also debated by legal writers. 73.", "The Court is aware that in exceptional cases the Constitutional Court may examine a constitutional complaint against a provision of law in the meaning attributed to it under consistent and long-standing judicial or administrative practice, provided that such interpretation has not been contested by legal writers (see, inter alia, the Constitutional Court’s judgment of 31 March 2005, case no. SK 26/02, § 5.3, with further references). However, it is not satisfied that the prerequisites for lodging such a constitutional complaint were met in the present case. Lastly, the Court notes that the Constitutional Court’s decision of 14 November 2007 in case no. SK 53/06 was given after the present application had been lodged.", "For the above reasons the Court considers that a constitutional complaint cannot be regarded with a sufficient degree of certainty as an effective remedy in the applicant’s case. 74. It follows that the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. C. Conclusion as to admissibility 75. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. D. Compliance with Article 6 § 1 1. The parties’ submissions 76. The Government argued that the complaint under Article 6 § 1 of the Convention was manifestly ill-founded.", "The question of access to a court had not arisen, since the applicant had never instituted judicial proceedings at domestic level. They reiterated that Article 6 § 1 was not applicable to the proceedings at issue and thus the operation of the Foundation’s bodies could not be examined under this provision. They further argued that the Foundation’s organs which dealt with the applicant’s case had been established in accordance with section 19 of the GFA and the Agreement of 16 February 2001 between the German and the Polish Foundation. Section 19 of the GFA stipulated that the partner organisations were to create appeals organs which were independent and subject to no outside instruction. The Partnership Agreement contained further detailed regulations in this respect.", "In so far as the appeal procedure was concerned, the Polish Foundation operated within the legal framework provided for by the GFA and the Partnership Agreement. 77. The Government underlined that the decisions of the Foundation’s Verification Commission and the Appeal Commission were subject to the scrutiny of the German Foundation. The latter could review decisions taken by the partner organisation after the appeal procedure had been concluded. To this end the Polish Foundation had to allow the German Foundation access to the relevant documents at any time.", "If grossly incorrect decisions were discovered during such inspection, the Polish Foundation had to reopen the procedure and remedy the issue in a new decision. Furthermore, the German Foundation could quash the decisions of the Polish Foundation and reopen a case. The Government stressed that the German Foundation could have ordered an audit of the Polish Foundation. Therefore, it was the German Foundation which exercised real control over the Polish Foundation. The role of the Polish authorities was limited to assessing whether the Polish Foundation operated in conformity with the law.", "78. The Government concluded that the Foundation’s Appeal Commission could not be considered a judicial body, and in any event Article 6 § 1 was not applicable to the proceedings before the Foundation. The Foundation’s bodies operated under the accessible provisions of law determined in the Partnership Agreement and the rules of procedure of the Appeal Commission were approved by the German Foundation. 79. The applicant maintained his application but did not submit specific comments.", "2. The Court’s assessment 80. Article 6 § 1 requires that in the determination of civil rights and obligations, decisions taken by administrative or other authorities which do not themselves satisfy the requirements of that Article be subject to subsequent control by a judicial body that has full jurisdiction (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51, Series A no. 43; Woś v. Poland, no. 22860/02, § 92, ECHR 2006‑VII).", "The Court must therefore first ascertain whether the Foundation’s adjudicating bodies – the Verification Commission and the Appeal Commission – could be considered as tribunals conforming to the requirements of Article 6 § 1. 81. The Court notes that the Government stressed the significant role of the German Foundation in the decision-making process concerning the claims raised before the Polish Foundation. Even assuming that the German Foundation could to some extent verify the correctness of the decisions taken by the Polish Foundation, there is no evidence that it had been involved in reviewing decisions taken in the applicant’s case. Thus, the Court, having regard to Article 10 of the GFA, reaffirms that for all practical purposes, decisions to grant payments in respect of the claimants who resided in Poland were taken by the Polish Foundation (see Woś v. Poland (dec.), cited above, § 66; Jakowicz (dec.), cited above, § 76 in fine).", "82. According to the Court’s settled case‑law, a tribunal within the meaning of that provision must satisfy a series of requirements – independence, in particular of the executive, impartiality, duration of its members’ terms of office, and guarantees afforded by its procedure – several of which appear in the text of Article 6 § 1 itself (see Belilos v. Switzerland, 29 April 1988, § 64, Series A no. 132; Demicoli v. Malta, 27 August 1991, § 39, Series A no. 210; and Cyprus v. Turkey [GC], no. 25781/94, § 233, ECHR 2001‑IV).", "In the present case, as regards structural guarantees, the Court notes that the members of the Verification Commission and the Appeal Commission were appointed and dismissed by the Foundation’s management board and, in respect of the latter, in consultation with the Foundation’s supervisory board. The Foundation’s statutes also specified that the rules governing the operation of the Foundation’s adjudicating bodies were to be set out in the regulations drafted by the management board and adopted by the supervisory board. The Foundation’s governing bodies were in turn appointed and dismissed by the Government Minister at his or her full discretion (see paragraph 23 above). Furthermore, a degree of control and supervision over the Foundation was exercised by the Government Minister. Furthermore, it appears that the members of the Verification Commission and the Appeal Commission did not have tenure.", "Thus, the Court considers that the independence of the Foundation’s adjudicating bodies, despite the Government’s arguments to the contrary in respect of the Appeal Commission, was open to serious doubt. As regards procedural guarantees, it appears that the adjudicating commissions had no clear and publicly‑available rules of procedure (see H v. Belgium, 30 November 1987, § 53, Series A no. 127‑B) and did not hold public hearings. For these reasons, they cannot be regarded as tribunals within the meaning of Article 6 § 1. 83.", "Therefore, in order for the obtaining situation to be in compliance with Article 6 § 1, the decisions of the Foundation’s adjudicating bodies should have been subject to review by a judicial body having full jurisdiction. However, the Court notes that until June 2007 the domestic courts’ prevailing position, as confirmed in the Supreme Court’s Resolution of 27 June 2007, was that judicial review by either administrative or civil courts in respect of the Foundation’s decisions was excluded (see paragraphs 41-42 and 44 above). At this juncture, the Court observes that the Government also criticised the applicant for having failed to institute judicial proceedings against the Foundation in the civil courts prior to the adoption of the Supreme Court’s Resolution. It notes, however, that the applicant was not obliged to pursue his claims before the courts, as such action would obviously have been futile, having regard to the settled case‑law of the domestic courts at the relevant period. 84.", "The Court observes that the major change in respect of the availability of judicial review in civil proceedings came with the Supreme Court’s Resolution of 27 June 2007. The Supreme Court revisited the existing practice and held that claims against the Polish Foundation in respect of Nazi persecution were civil claims in the formal sense. Accordingly, the civil courts had jurisdiction to examine such claims. The Court very much welcomes such a positive development in the Supreme Court’s case-law which, at least in part, was prompted by its judgment in the Woś case. However, as noted above (see paragraph 71 above), the applicant in this case was not required to attempt to seek judicial review of the Foundation’s decisions as such a possibility arose only after he had lodged his application.", "85. Having regard to the above considerations, the Court considers that the exclusion of judicial review in respect of the decisions given by the Foundation in the applicant’s case impaired the very essence of his right of access to a court within the meaning of Article 6 § 1 of the Convention. 86. It follows that there has been a breach of Article 6 § 1 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 88. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 2 February 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy Registrar President [1]. Treaty of 14 November 1990 on Confirmation of the Existing Border between the Federal Republic of Germany and the Republic of Poland.", "[2]. Treaty of 17 June 1991 on Good Neighbourliness and Friendly Cooperation. [3]. On an unspecified later date the function of Founder was assumed by the Minister of the State Treasury. [4]4.", "The other parties being the governments of the Federal Republic of Germany, the United States of America, the Republic of Belarus, the Czech Republic, the State of Israel, the Russian Federation and Ukraine, and the Foundation Initiative of German Industry, the Conference on Jewish Material Claims against Germany and a number of counsels representing individual plaintiffs in cases brought before the courts in the United States. [5]5. For details, see the decision in the case Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione (A.N.R.P.) v. Germany, no. 45563/04, 4 September 2007.", "[6]6. The Supreme Court made a survey of the relevant case-law of the civil and administrative courts. It noted, as an exception to the dominant trend in the case-law, the Poznań Court of Appeal’s decision of 14 January 2005 and the Szczecin Court of Appeal’s judgment of 12 July 2006." ]

[ "SECOND SECTION CASE OF POCASOVSCHI AND MIHAILA v. THE REPUBLIC OF MOLDOVA AND RUSSIA (Application no. 1089/09) JUDGMENT STRASBOURG 29 May 2018 FINAL 29/08/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pocasovschi and Mihaila v. the Republic of Moldova and Russia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Robert Spano, President,Paul Lemmens,Ledi Bianku,Işıl Karakaş,Nebojša Vučinić,Valeriu Griţco,Dmitry Dedov, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 May 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "1089/09) against the Republic of Moldova and the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Ruslan Pocasovschi and Mr Ion Mihăilă (“the applicants”), on 19 December 2008. While initially the applicants’ representative indicated that they intended to submit the application also in respect of 141 other applicants, they did not submit any details about such other applicants. The case before the Court thus concerns only the two applicants mentioned above. 2. The applicants were represented by Mr A. Briceac and Mr T. Cârnaț.", "The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 3. The applicants alleged, in particular, that they had been held in inhuman conditions of detention and that the civil proceedings which they had brought had been excessively long. 4. On 13 October 2009 the application was communicated to the Governments.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1975 and 1976 and live in Cahul and Cetireni respectively. 6. The facts of the case, as submitted by the parties, may be summarised as follows.", "A. Conditions of the applicants’ detention 7. The applicants were convicted by Moldovan courts and, at the time of the events, were serving their sentences in prison no. 8 situated in the town of Tighina (Bender), in the Transdniestrian region of the Republic of Moldova. The town is situated in the security zone under the control of peacekeepers from Moldova, Russia and the self-proclaimed “Moldavian Republic of Transdniestria” (“MRT”)[1].", "Prison no. 8 is under the exclusive control of the Moldovan authorities. By October 2003 some 236 people were detained there; some of them, such as the applicants, were ill with tuberculosis. 8. On 23 September 2002 the Bender local administration, which is subordinated to the “MRT” authorities, disconnected prison no.", "8 from the electricity, water and heating supplies. As a result, the detainees were deprived of conditions of basic hygiene, and the food they received did not meet the minimum standards of quality. 9. The prison authorities informed the Moldovan Ministry of Justice, the President’s Office, the Organization for Security and Co-operation in Europe (OSCE), the Red Cross and the Council of Europe, as well as local human rights organisations, with a view to obtaining assistance in resolving the problem arising from the disconnection from the town’s utilities network. 10.", "On 12 August 2003 the Bender prosecutor’s office (which forms part of the official Moldovan authorities) informed the Helsinki Committee for Human Rights in Moldova (“the CHDOM”), for which the applicant’s representative worked, that, as a result of pressure from the OSCE, the Bender authorities had reconnected the prison to the electricity and water supply systems on 23 February 2003. On 10 July 2003 the last of the people who were ill with tuberculosis were transferred to a newly-built hospital wing in Pruncul prison hospital, situated in Moldova. According to the head of prison no. 8, some 236 healthy detainees, including the applicants, remained in the prison after that date. However, also on 10 July 2003, the local authorities disconnected prison no.", "8 from the electricity and water supply systems again, without any warning. The “MRT” authorities insisted that the prison needed to be closed down. 11. On 15 September 2004 Mr Pocasovschi (the first applicant) was transferred to another prison. He was released on parole on 14 April 2005.", "Mr Mihăilă (the second applicant) was transferred to another prison on 1 March 2004 and was released on parole on 28 March 2005. B. Criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems 12. On 21 July 2003 the applicants’ representatives asked the Moldovan Prosecutor General’s Office to initiate criminal proceedings against those responsible for disconnecting prison no.", "8 from the utilities systems. On 12 August 2003 the Bender prosecutor’s office replied in general terms, describing the difficult situation with regard to prison no. 8 and the unsuccessful negotiations with the local authorities. 13. On 29 August 2003 the CHDOM asked the Bender District Court (which is part of the Moldovan court system) to order the prosecutor’s office to remedy the human rights violations taking place in prison no.", "8. 14. On 7 October 2003 the head of prison no. 8 informed the court that, owing to insufficient access to water and electricity, detainees in his institution could not receive appropriate medical assistance or food of a sufficient standard, or maintain proper hygiene. 15.", "On 31 October 2003 the Bender District Court ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities supply. That decision was upheld by the Bender Court of Appeal on 18 December 2003. 16. According to the Moldovan Government, on 18 November 2003 the Bender prosecutor’s office contacted the “MRT” authorities with a view to prosecuting those responsible for disconnecting prison no.", "8 from the utilities. It also informed the Joint Control Commission (see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, § 90, ECHR 2004‑VII) of the need to include the subject on its agenda. On 20 December 2003 the “MRT” prosecutor’s office refused to open a criminal investigation on the ground that no crime had been committed. 17.", "On 19 January 2004 the relatives of two of the detainees made another complaint to the CHDOM regarding the inhuman conditions of detention in prison no. 8. That letter was forwarded to the Moldovan Ministry of Justice, the President of the Republic of Moldova and the Prosecutor General’s Office, along with a request to take all necessary steps to immediately improve the conditions of detention. 18. On 1 March 2004 the CHDOM asked the Bender prosecutor’s office what action had been taken pursuant to the above-mentioned court decisions.", "On 12 March 2004 the Bender prosecutor’s office replied that all the material was at the Prosecutor General’s Office, which was dealing with the case. 19. On 15 March 2004 the Ministry of Justice informed the CHDOM that the State was making all necessary efforts to ensure acceptable conditions of detention at prison no. 8, and that, at that time, the conditions of detention at that prison did not differ from those at other prisons in the Republic of Moldova. 20.", "On 20 April 2004 the Prosecutor General’s Office informed the CHDOM that it had lodged an extraordinary appeal with the Supreme Court of Justice against the decisions of 31 October 2003 and 18 December 2003. On 3 August 2004 the Supreme Court of Justice upheld those decisions. 21. On 1 June 2009 the CHDOM asked the Prosecutor General’s Office what actions had been undertaken after the judgment of the Supreme Court of Justice of 3 August 2004. On 14 July 2009 the Bender Prosecutor’s Office replied that the actions of the “MRT” authorities could not be investigated by the Moldovan authorities as long as the “MRT” authorities de facto controlled the territory of the “MRT”.", "C. Civil action lodged by the applicants 22. On 15 March 2004, on behalf of 141 detainees in prison no. 8, including the applicants, the CHDOM lodged a civil action against the Ministry of Justice, asking for the finding of a violation of the rights guaranteed under Article 3 of the Convention. The detainees had authorised the organisation to act on their behalf. The CHDOM also asked for an improvement in the conditions of detention and for the payment of compensation in the amount of 15,000 Moldovan lei (MDL – approximately 1,000 euros (EUR) at the time) for each detainee.", "23. On 16 and 22 April 2004 the President of the Bender District Court asked the Supreme Court of Justice to decide whether the case should be examined by another court. On 19 May 2004 the Supreme Court of Justice rejected the request and left the case with the Bender District Court. 24. On 18 June 2004 the Bender District Court decided to transfer the case to the Buiucani District Court in Chişinău, in accordance with territorial competence principles.", "The claimants (the detainees) and their representatives were not consulted. On 22 June 2004 the CHDOM challenged that decision. On 14 July 2004 the Bender Court of Appeal set aside the decision of 18 June 2004 and ordered the urgent examination of the case by the Bender District Court. 25. On 28 December 2004 the Bender District Court declined to examine the claim because it did not satisfy legal requirements.", "On 1 February 2005 the Bender Court of Appeal set aside that decision. 26. After February 2005 many of the 141 detainees who were plaintiffs in the above-mentioned civil action were transferred to other prisons in various parts of the country, which made it more difficult for the CHDOM to obtain confirmation of each individual’s power of attorney, as requested by the Bender District Court. In such circumstances, the CHDOM selected nine cases (including those of the applicants in the present case) with which to continue the proceedings. Since the individuals concerned were also detained in separate prisons, the CHDOM made an application for their cases to be examined separately, an application which the Bender District Court refused on 11 November 2005.", "27. On 26 April 2006 the Bender District Court rejected the CHDOM’s application to summon as defendants the individuals from the relevant local “MRT” authorities in Bender responsible for violating the detainees’ rights. On an unknown date in June 2006 the Bender Court of Appeal set aside that decision and ordered the summoning as defendants of A.P., A.M. and V.M., the heads of the relevant local “MRT” authorities in Bender. According to the applicants, none of these individuals was summoned by the Bender District Court. 28.", "On 15 December 2006 the judge who had been examining the case withdrew from it. On 18 May 2007 the judge who had taken over the case also withdrew from it. Subsequently, all other judges of the Bender District Court withdrew, allegedly for fear of persecution by the “MRT” authorities. As a result, the Bender Court of Appeal was asked to decide which other court could examine the case. On 13 November 2007 the Bender Court of Appeal decided that the case should be examined by the Anenii-Noi District Court.", "29. On 26 December 2007 the Anenii-Noi District Court declined to examine the claim because it did not fulfil certain legal requirements. It found in particular that there was a lack of valid powers of attorney in favour of the CHDOM. 30. On 6 March 2008 the CHDOM lodged a reformulated court action in accordance with the legal requirements.", "It also asked for the Russian Government to be summoned as a defendant in the case, as it had de facto control over the territory of the “MRT”. It claimed EUR 10,000 and EUR 7,000 respectively for the breach of the applicants’ rights. On the same date the Anenii-Noi District Court declined to examine the claim because the powers of attorney issued by the detainees in favour of the CHDOM had expired. 31. On 20 May 2008 the Bender Court of Appeal set aside the decision of 6 March 2008, noting that, in the applicants’ cases, the powers of attorney had been renewed.", "32. On 18 June 2008 the Anenii-Noi District Court adjourned the hearing because of the absence of a representative of the Ministry of Justice. The same thing occurred on 29 October 2008. The court also informed the CHDOM that, in a letter dated 2 July 2007, the Ministry of Justice had informed the court that a representative of the Russian Federation could only be summoned via the Ministry of Justice. 33.", "On 30 December 2008 the Anenii-Noi District Court adopted a judgment in which it allowed the applicants’ claims in part. It awarded each of them damages in the amount of EUR 200, to be paid by the Moldovan Ministry of Finance, and EUR 500, to be paid by the Russian Ministry of Finance. 34. On 30 June 2009 the Bender Court of Appeal quashed that judgment in part. It found that, following the prison’s disconnection from the utilities, the prison administration had no longer been able to offer food or medical treatment for tuberculosis which was of an adequate quality; there had been no access to showers, a very poor situation concerning personal hygiene, and only two hours of electricity per day, ensured by a low-power generator.", "None of the complaints made to the State authorities had resulted in an improvement in the conditions of detention until much later, as established in 2008. The court acknowledged a breach of the applicants’ right not to be held in inhuman conditions of detention, and increased the award in favour of each of them to MDL 20,000 (EUR 1,266 at the time). It also found that the Russian Federation could not be a defendant in Moldovan courts unless it expressly agreed to that, which was not the case here. 35. On 27 April 2010 the Supreme Court of Justice accepted the applicants’ appeal on points of law in part, and amended the judgment of the lower court.", "It analysed in detail the length of the civil proceedings (between 22 March 2004 and the date of adopting its own judgment on 27 April 2010), the complexity of the case, how the parties and the courts had contributed to the length of the proceedings, as well as the significant interest at stake for the applicants. The court found that, despite the applicants’ representatives’ actions contributing to the overall length of the proceedings (twenty-six out of the sixty-seven months), a breach of the right to a trial within a reasonable time had taken place, requiring additional compensation which it set at MDL 6,000 (approximately EUR 358 at the time). It did not amend the remainder of the lower court’s judgment. D. General action undertaken by the Moldovan authorities 36. The Moldovan Government submitted a long list of actions concerning their efforts to assert their sovereignty over the “MRT” territory and ensure that human rights were observed in the region.", "They also submitted copies of documents concerning prison no. 8 in Tighina/Bender specifically, raising in particular the issue of the prison being disconnected from utilities within the framework of the “5+2” negotiations process (between the OSCE, Russia, Ukraine, the European Union and the USA, in addition to Moldova and the “MRT”) and with various international organisations. II. RELEVANT REPORTS OF INTER-GOVERNMENTAL AND NON‑GOVERNMENTAL ORGANISATIONS 37. Relevant reports of various inter-governmental and non-governmental organisations concerning the situation in the “MRT” have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no.", "11138/10, §§ 61-68, ECHR 2016). THE LAW 38. The applicants complained regarding their inhuman conditions of detention (Article 3 of the Convention), the excessive length of the civil proceedings in which they claimed damages (Article 6 § 1) and a lack of effective remedies in respect of these complaints (Article 13 taken in conjunction with Articles 3 and 6 § 1). I. ADMISSIBILITY 39. The Moldovan Government submitted that the applicants’ complaints at the time of lodging their application had been premature since, at that time, the civil action which they had lodged with the domestic courts was still being examined.", "The applicants had thus failed to properly exhaust available domestic remedies in the Republic of Moldova. The Moldovan Government also argued that, following the adoption of a final judgment expressly acknowledging the breach of Articles 3 and 6 of the Convention and awarding compensation, the applicants could no longer claim to be victims of a breach by the Republic of Moldova of their Convention rights. The Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”. 40. The Russian Government argued that the applicants did not come within their jurisdiction and that, consequently, the applications should be declared inadmissible in respect of the Russian Federation.", "They also submitted that the application should be dismissed as inadmissible ratione temporis, without giving any further details. A. Jurisdiction 41. The Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”. 42.", "For their part, the Russian Government argued that the applicants did not come within their jurisdiction. Consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. Moreover, they challenged the Court’s jurisdiction ratione temporis, without any details being given. 43. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others v. the Republic of Moldova and Russia ([GC], nos.", "43370/04 and 2 others, §§ 103-07, ECHR 2012 (extracts)) and, more recently, Mozer (cited above, §§ 97-98). 44. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).", "45. In so far as the applicants complain about the disconnection of prison no. 8 from the public utilities by the local authorities of the “MRT”, the Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).", "46. However, unlike in previous cases concerning alleged breaches of the Convention by the “MRT”, the Moldovan authorities in the present case were not limited to only fulfilling their positive obligations as mentioned in the preceding paragraphs. The case is different in that, while not having control over the local authorities in Bender which disconnected prison no. 8 from the utilities, the Moldovan authorities had full control over that prison itself and the detainees there throughout the relevant period. They could have taken measures in the prison itself to cope with the effects of the disconnection from the utilities or they could have transferred the prisoners to other prisons at any time.", "By choosing to continue to detain the applicants in prison no. 8 without immediate action taken to ensure basic conditions of detention, the Moldovan authorities knowingly exposed them to the conditions which prevailed there after the disconnection from all utilities. In addition to the above-mentioned positive obligations, it was therefore also the direct responsibility of the Moldovan authorities to prevent or redress the alleged violation of the applicants’ rights in that prison. 47. In so far as the Russian Federation is concerned, the Court would normally have to examine in the first place whether the facts fell within the jurisdiction of that State.", "However, in the particular circumstances of the present case, it considers it unnecessary to determine this issue, since the application must in any event be declared inadmissible insofar as directed against that State, for the reasons mentioned in paragraphs 48-50 below. B. Compliance with the six-month period for lodging the application in respect of the Russian Federation 48. The Court needs to verify whether the applicants complied with the six-month time-limit for lodging their application, in accordance with Article 35 § 1 of the Convention. It reiterates that the six-month rule stipulated in that provision is intended to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time.", "It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, in so far as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Jeronovičs v. Latvia [GC], no. 44898/10, § 74, ECHR 2016). 49. Turning to the situation in the “MRT”, the Court notes that in the past it has found a violation of Article 13 of the Convention in respect of the Russian Federation, precisely because it could not establish the existence of effective remedies in that country in respect of Convention breaches committed by the authorities of the “MRT” (see Mozer, cited above, §§ 211 and 218).", "In the same vein, the Court does not consider the lodging of a complaint in Moldovan courts against another country without the latter’s consent to be involved as a defendant (see paragraph 30 above) to be a remedy. It therefore finds that, in the absence of any effective remedy in Russia, any complaints against that country must be lodged with the Court within six months of the date of the alleged violation or the date when such a violation ended. 50. In the present case, the applicants were transferred to other prisons on 1 March 2004 and 15 September 2004 respectively (see paragraph 11 above) and were thus from these dates on no longer held in allegedly inhuman conditions. However, they lodged their application on 19 December 2008.", "Therefore, regardless of whether or not the applicants came under the jurisdiction of the Russian Federation, the complaints against that respondent State were lodged outside the time-limit set down by Article 35 § 1 of the Convention, and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention. C. Exhaustion of domestic remedies and the applicants’ victim status concerning the application in respect of the Republic Moldova 51. The Moldovan Government submitted that the applicants had not exhausted the remedies available to them in the Republic of Moldova, since they had lodged their application prematurely while domestic proceedings concerning the recognition of the violation of their rights and their claims for compensation were ongoing. 52. The Court reiterates that although, in principle, an applicant is required to have recourse to domestic remedies before applying to the Court and compliance with that requirement is assessed on the date the application was lodged (see Baumann v. France, no.", "33592/96, § 47, ECHR 2001‑V), it can accept the fact that the last stage of such remedies may be reached after the lodging of the application but before it is called upon to pronounce on its admissibility (see Karoussiotis v. Portugal, no. 23205/08, §§ 57 and 87-92, ECHR 2011; Rafaa v. France, no. 25393/10, § 33, 30 May 2013; and Cestaro v. Italy, no. 6884/11, § 146, 7 April 2015). It notes that, by the time the present application was examined, the applicants had fully exhausted the domestic remedies available to them in the Republic of Moldova (see paragraph 35 above).", "Accordingly, this objection is dismissed. 53. The Moldovan Government also submitted that the applicants could no longer claim to be victims of breaches by the Republic of Moldova of their Convention rights, after the domestic courts had expressly acknowledged a breach of Articles 3 and 6 of the Convention and awarded them compensation. The Court considers that this objection is closely linked to the substance of the complaints raised by the applicants. Accordingly, it joins this objection to the merits of the application.", "D. Withdrawal of complaint 54. The Court notes that, in their initial application, the applicants complained of a breach of Article 34 of the Convention. However, in their observations they asked the Court not to examine this complaint, because in fact it related to other people who were in the same situation as the applicants but who were not parties in the present case. 55. The Court takes note of the withdrawal of this complaint.", "E. Conclusion on admissibility 56. The Court considers that the applicants’ complaints against the Republic of Moldova under Articles 3, 6 and 13 raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring them inadmissible have been established. The Court therefore declares this part of the application admissible. II.", "MERITS A. Alleged violation of Article 3 of the Convention 57. The applicants complained regarding the inhuman conditions of detention at prison no. 8 in Tighina/Bender, contrary to Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 58. The applicants referred to the prison’s disconnection from the utilities as causing standards to drop to a level which should be considered inhuman treatment, notably due to the lack of hygiene, the poor quality of the food and their inability to have their diseases properly treated (both applicants were ill with tuberculosis at the relevant time).", "They submitted that in total they had spent twenty-four and seventeen months respectively in inhuman conditions in prison no. 8. 59. The Government submitted that, despite the difficulties created by the disconnection from the utilities, the prison authorities and the Penal Institutions Department had taken immediate action to ensure that the detainees were provided with the minimum necessities such as water, food and heating, which had all been brought in by trucks. Electricity had been produced in situ by four electric generators, and heating had been ensured by thirty-five heaters.", "Five toilets not requiring connection to the city’s waste disposal system had been built, and the prison’s showers had been rebuilt to function without electricity from the grid or water from the pipeline. All these efforts had been made possible by almost doubling the State’s budget for the running costs of that prison during 2002-2008. 60. Moreover, following its visits on 18 March 2006 and 14‑24 September 2007, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had found that, from February 2004 onwards, the Moldovan authorities had taken action to improve the detainees’ situation as much as possible. The Government further submitted that each detainee was warned about the conditions of detention in prison no.", "8 and agreed to them before being transferred there, some of them preferring to be held there since it was closer to their homes and relatives, while all those who refused were not placed in that prison. The Government lastly argued that the Moldovan authorities had taken all reasonable measures and had incurred great public expense in order to fulfil their positive obligations under the Convention to ensure that the rights of detainees in prison no. 8 were observed as much as possible, given the hostile actions of the Bender local administration. 61. Insofar as the Government submitted that the applicants were warned about the conditions of detention in prison no.", "8 and agreed to them before being transferred there, the Court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (Muršić v. Croatia [GC], no. 7334/13, § 96, ECHR 2016). The Government’s submission could raise the question whether a waiver of the right under Article 3 is possible, notwithstanding the absolute nature of the prohibition. However, even assuming that such a waiver might be possible, the circumstances of the present case do not permit the conclusion that there has been any valid waiver.", "Indeed, the applicants were deprived of their liberty, and thus within the power of the authorities (see, mutatis mutandis, M.S. v. Belgium, no. 50012/08, § 124, 31 January 2012). As the Court has held with respect to the waiver of certain procedural rights, a waiver must be of the applicant’s own free will and must be established in an unequivocal manner and attended by minimum safeguards commensurate to its importance (see, among others, Scoppola v. Italy (no. 2) [GC], no.", "10249/03, § 135, 17 September 2009). However, the Government did not clarify the nature of the guarantees which would assure a free decision by the applicants. 62. The Court notes that the conditions of detention during September 2002-April 2004 were considered by the domestic courts to be inhuman (see paragraph 34 above). Even though the Moldovan Government suggested that the authorities had taken action to improve the conditions of detention, their arguments refer to actions taken after February 2004 (see paragraph 59 above), that is, close to the end of the applicants’ detention in prison no.", "8. The Court has no reason to depart from the domestic courts’ assessment of the conditions of detention and finds, as did those courts, that prolonged detention in conditions where access to water, electricity, food, warmth and medication is severely limited amounts to inhuman treatment under Article 3 of the Convention. 63. What remains to be verified is whether, following the express acknowledgment of a violation of Article 3 and the award of compensation, the applicants can still claim to be victims of that violation by the Republic of Moldova. 64.", "It notes that the applicants complained only regarding the conditions of detention during the prison’s disconnection from the utilities. The Court will take into account only the periods during which they were held in these conditions. There were two such periods: 23 September 2002-23 February 2003 (see paragraphs 8 and 10 above), and 10 July 2003 until the dates of the applicants’ transfer to other prisons (15 September 2004 and 1 March 2004 respectively, see paragraph 11 above). Accordingly, the applicants were held in inhuman conditions for approximately nineteen and thirteen months respectively. 65.", "Where, as in the present case, the victim status and therefore, the existence of a violation, is linked with the monetary redress afforded at domestic level, the Court’s assessment necessarily involves comparison between the actual award and the amount that the Court would award in similar cases (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 181 and 202, ECHR 2006‑V; see also Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001‑I).", "66. In this connection, the Court notes that the domestic courts awarded the applicants the equivalent of EUR 1,266 in respect of the breach of Article 3 (see paragraphs 34 and 35 above). The Court considers that the sum awarded by the domestic courts is considerably below that generally awarded by the Court in cases in which it has found a violation of Article 3 in respect of the Republic of Moldova concerning conditions of detention, especially considering the particularly harsh conditions of the applicants’ detention and the relatively long period during which they were held in such conditions (see, by way of comparison, Shishanov v. the Republic of Moldova, no. 11353/06, § 143, 15 September 2015, Savca v. the Republic of Moldova, no. 17963/08, § 58, 15 March 2016, and Cristioglo v. the Republic of Moldova, no.", "24163/11, § 31, 26 April 2016). 67. In the light of the foregoing, the Court considers that the applicants can still claim to be victims of a violation of Article 3 of the Convention. Accordingly, the Moldovan Government’s objection concerning the applicants’ victim status (see paragraph 39 above) is dismissed. 68.", "There has accordingly been a violation of Article 3 by the Republic of Moldova in the present case. B. Alleged violation of Article 6 § 1 of the Convention 69. The applicants also complained of the excessive length of the civil proceedings which they had initiated against the State authorities. They relied on Article 6 § 1 of the Convention, the relevant part of which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 70.", "The Government submitted that the applicants could no longer claim to be victims of a breach of their right to a hearing within a reasonable time, in view of the express acknowledgment of such a violation by the Supreme Court of Justice and the award made to compensate them for that violation (see paragraph 35 above). In any event, the case had been quite complex given the number of plaintiffs at domestic level, the background of actions by the “MRT” and the applicants’ application to involve Russia as a defendant. Moreover, the applicants’ representatives had contributed to approximately 20% of the delays and had even accepted the defendant’s application for the initial claim to be struck from the court’s docket because they had already prepared a new court action to replace the old one. This had resulted in a new delay in order for the defendants to study the new claim. 71.", "The Court notes that by 15 March 2004 when the domestic court action was lodged the second applicant was no longer detained in the conditions complained of. The first applicant was detained in such conditions during six more months. Thereafter, their court action did not concern any urgent matter since the courts could only find a breach of the applicants’ rights and award compensation. At the same time, as found by the Supreme Court of Justice (see paragraph 35 above), the applicants’ representatives contributed to approximately 20% of the delay in examining the court action. 72.", "Having regard to all the material in its possession, and even assuming that the entire period of approximately six years is to be taken into consideration despite the apparent lodging of a new claim on 6 March 2008 (see paragraph 30 above), taking into consideration the award made in this respect by the Supreme Court of Justice (see paragraph 35 above), as well as the complexity of the case and the CHDOM’s contribution to the overall length of the proceedings, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. C. Alleged violation of Article 13 of the Convention 73. The applicants also argued that they had no effective remedies in respect of their complaint regarding the conditions of detention. They relied on Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 74.", "The Moldovan Government argued that the applicants had at their disposal domestic remedies in the form of civil court actions to establish detention in inhuman or degrading conditions and claim compensation. They submitted copies of several judgments from cases in which detainees had been successful in obtaining compensation in similar circumstances. Moreover, the applicants’ own court actions had been successful, each having been awarded MDL 20,000, which proved once more the effectiveness of the remedy. 75. The applicants argued that, in order to be effective, the remedies referred to by the Moldovan Government also had to ensure that those responsible for the breaches of their Convention rights (individuals in the “MRT” local administration) were prosecuted.", "Moreover, they had not obtained an improvement in their conditions of detention while it still mattered. 76. The Court observes that it found violations of Article 13 of the Convention in Malai v. Moldova (no. 7101/06, §§ 45-46, 13 November 2008), I.D. v. Moldova (no.", "47203/06, § 50, 30 November 2010) and Rotaru v. Moldova (no. 51216/06, § 47, 15 February 2011) on account of the lack of effective remedies in the Republic of Moldova in respect of inhuman and degrading conditions of detention. It has underlined that the remedy of a court action in the form suggested by the Moldovan Government does not have a preventive effect in the sense of improving the conditions of an applicant’s detention, only a compensatory effect (see, for instance, Holomiov v. Moldova, no. 30649/05, § 107, 7 November 2006; and Shishanov v. the Republic of Moldova, no. 11353/06, §§ 124-139, 15 September 2015).", "The remedy is therefore not effective in cases where people are still detained in such conditions at the time of lodging their application with the Court (see, for instance, Oprea v. Moldova, no. 38055/06, § 33, 21 December 2010). 77. In view of the fact that the first applicant was still detained in prison no. 8 at the time of lodging his claim with the domestic courts on 15 March 2004 (see paragraphs 11 and 22 above), the remedy referred to by the Moldovan Government was not an effective one, since it did not allow for an immediate improvement in the first applicant’s conditions of detention (see the preceding paragraph).", "78. There has thus been a violation by the Republic of Moldova of Article 13 taken in conjunction with Article 3 of the Convention in respect of the first applicant (see Shishanov, cited above, §§ 123-139). 79. As for the second applicant, the Court notes that he was transferred from prison no. 8 to another prison on 1 March 2004 (see paragraph 11 above), before he lodged his claim before the domestic courts on 15 March 2004 (see paragraph 22 above).", "Accordingly, at the time when he initiated his civil action he could not ask for an improvement in his conditions of detention in that prison, but only an acknowledgment of a breach of his rights and compensation. Since domestic law allowed him to seek both, and since he was able to obtain these things in final court judgments, the Court finds that the second applicant had at his disposal available effective remedies. 80. The Court therefore finds that there has been no violation by the Republic of Moldova of Article 13 taken in conjunction with Article 3 of the Convention in respect of the second applicant. 81.", "As for the applicants’ complaint that the Moldovan authorities failed to properly investigate the actions of the “MRT” officials who disconnected prison no. 8 from the utilities, the Court notes that although the Moldovan courts ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting the prison (see paragraphs 15 and 20 above), it seems that no further action was undertaken by that office, because of lack of effective possibilities to bring any “MRT” official to justice (see paragraph 21 above). The Court notes, however, that already on 18 November 2003 the Bender Prosecutor’s Office had contacted the “MRT” authorities with a view to prosecuting those responsible, and that on 20 December 2003 the “MRT” prosecutor had refused to open a criminal investigation on the ground that no crime had been committed (see paragraph 16 above). 82. In light of the above, the Court considers that the Republic of Moldova has fulfilled its positive obligation in this respect.", "There has therefore been no violation of Article 13 in this respect. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 84.", "The first applicant claimed EUR 100,000 from the Moldovan Government and EUR 90,000 from the Russian Government in respect of non-pecuniary damage. The second applicant claimed EUR 80,000 from the Moldovan Government and EUR 70,000 from the Russian Government in respect of non-pecuniary damage. They referred to the suffering and anxiety which they had experienced as a result of the inhuman conditions of detention. They also referred to their fear for their lives, given their inability to have their tuberculosis treated during the relevant time and the fact that the mortality rate among detainees suffering from that disease in prison no. 8 had increased during the relevant period due to the harsh conditions.", "85. The Moldovan Government submitted that the applicants had failed to specify the basis for their claim, and that the recognition by the domestic courts of a breach of their rights constituted sufficient just satisfaction. In any event, the sum claimed was excessive in comparison with previous cases against the Republic of Moldova concerning conditions of detention. 86. The Court notes firstly that it has declared all the complaints against the Russian Federation in the present case inadmissible.", "Accordingly, no award can be made in respect of that State. 87. In respect of the claims against the Republic of Moldova, the Court refers to its finding (see paragraph 66 above) that the award made by the domestic courts was well below that which it would award in similar cases. In the light of all the circumstances, in particular the relatively long period of detention in particularly harsh conditions with a risk to the applicants’ health, and taking into account the sums already awarded by the domestic courts, the Court awards the first applicant EUR 3,000 and the second applicant EUR 1,800 in respect of non-pecuniary damage. B.", "Costs and expenses 88. The applicants also claimed EUR 5,160 for costs and expenses incurred before the Court. They annexed a list of hours which their lawyers had spent working on the case (eighty-six hours at an hourly rate of EUR 60). 89. The Moldovan Government submitted that the applicants had presented inconsistent claims regarding legal representation before the domestic courts and this Court.", "Moreover, they had failed to produce a contract with their lawyers. In addition, during the proceedings, the applicants’ lawyers, being members of a human rights non-governmental organisation (NGO), had submitted to the domestic courts that they were financed by foreign funds, which could be interpreted as saying that they were paid by foreign donors to represent socially vulnerable individuals like the applicants. They should therefore not be able to claim payment for that representation once more from the Government. There was no evidence that the applicants had actually paid any sum of money to their representatives. In any event, the sum claimed was excessive, particularly in view of the fact that the domestic courts had already awarded MDL 5,000 for legal costs.", "Lastly, the number of hours which the lawyers had spent working on the case was also excessive. 90. According to the Court’s case-law (see for a recent example Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 jointly to cover costs under all heads.", "C. Default interest 91. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins the Moldovan Government’s preliminary objection concerning the alleged loss of the applicants’ victim status to the merits of the application and rejects it; 2. Declares the complaints against the Republic of Moldova under Articles 3 and 13 of the Convention admissible, and the remainder of the application inadmissible; 3.", "Declares the application against the Russian Federation inadmissible; 4. Holds that there has been a violation of Article 3 of the Convention by the Republic of Moldova in respect of both applicants; 5. Holds that there has been a violation of Article 13 of the Convention by the Republic Moldova in respect of the first applicant, 6. Holds that there has been no violation of Article 13 of the Convention by the Republic Moldova in respect of the second applicant; 7. Holds (a) that the Republic of Moldova is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement: (i) EUR 3,000 (three thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 1,800 (one thousand eight hundred euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 8.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 29 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıRobert SpanoDeputy RegistrarPresident [1]. For further details, see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004‑VII)." ]

[ "FIFTH SECTION CASE OF PELEVIN v. UKRAINE (Application no. 24402/02) JUDGMENT STRASBOURG 20 May 2010 FINAL 20/08/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pelevin v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Mark Villiger,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,Mykhaylo Buromenskiy, ad hoc judge,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "24402/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Mykola Mykolayovych Pelevin (“the applicant”), on 21 May 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev. 3. The applicant alleged that the Supreme Court's initial refusal to consider his appeal in cassation within the ordinary cassation review proceedings violated his right to access to a court.", "4. On 8 April 2003 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS 5. The applicant, Mr Mykola Mykolayovych Pelevin, is a Ukrainian national who was born in Rostov-on-Don in 1938 and who currently resides in L'viv.", "I. THE CIRCUMSTANCES OF THE CASE 6. On 22 July 1999 a private dispute arose between the applicant and M.M.E. (a private person) over access to the attic of a building. As a result the applicant inflicted bodily injury on M.M.E.", "with an axe. 7. On 18 August 1999 M.M.E. instituted a private prosecution (приватне обвинувачення) against the applicant before the Zaliznychny District Court of L'viv and claimed compensation for non-pecuniary damage. 8.", "On 7 June 2000 the applicant sought to institute criminal proceedings against M.M.E. before the Zaliznychny District Court of L'viv for inflicting minor bodily injury. 9. On 13 July 2000 the Zaliznychny District Court of L'viv, in particular Judge U.P.F., instituted criminal proceedings against the applicant. He also decided that M.M.E.", "should be granted victim status in these proceedings. 10. On 9 June and 3 August 2000 and 27 April 2001 the applicant applied to the President of the Zaliznychny District Court of L'viv, seeking the withdrawal of Judge U.P.F. from his case. The applicant submitted, inter alia, that Judge U.P.F.", "had not allowed him to use the Russian language in court, in particular to put questions to witnesses. On 18 October 2000 and 27 April 2001 the President of the Zaliznychny District Court of L'viv dismissed the applicant's request as unsubstantiated. 11. On 18 May 2001 the Zaliznychny District Court of L'viv refused the applicant's request to institute criminal proceedings against M.M.E and his family members on suspicion of inflicting minor bodily injury on the applicant in May 2000. The applicant appealed against this decision.", "On 25 December 2001 the L'viv Regional Court of Appeal dismissed the applicant's appeal. 12. On 21 June 2001 the Zaliznychny District Court of L'viv found the applicant guilty of inflicting minor bodily injury and of arbitrary behaviour in July 1999, sentenced him to an administrative fine and released him from criminal liability because of his advanced age, on the basis of the amnesty law in force at the time. It also ordered the applicant to pay M.M.E. compensation for non-pecuniary damage and legal costs in the amount of 2,406 Ukrainian hryvnias (UAH).", "The court also acquitted M.M.E. of inflicting minor bodily injury on the applicant. The applicant was allowed to submit his oral plea to the court in Russian. According to the record of the court hearings, the applicant did not lodge a request for leave to use the Russian language, nor did he request the assistance of an interpreter. 13.", "The applicant lodged an appeal against the judgment of 21 June 2001. On 25 September 2001 the L'viv Regional Court of Appeal dismissed the applicant's appeal as unsubstantiated. In the proceedings before the first-instance court and the court of appeal the applicant was assisted by a lawyer practising in L'viv (a licensed advocate). 14. On 16 March 2002 the applicant lodged an appeal in cassation with the Supreme Court.", "In his appeal the applicant relied on Articles 383 - 387 of the Code of Criminal Procedure which governed the examination of criminal cases within the ordinary cassation review proceedings. In his appeal he mentioned that he had not been able to participate effectively in the proceedings because he had not been allowed to use Russian while putting questions to the witnesses and had not been provided with the assistance of an interpreter. 15. On 9 April 2002 a judge of the Supreme Court V.S., by a letter and without taking any procedural decision, refused to institute extraordinary review proceedings (перегляд в порядку виключного провадження) in the applicant's case. 16.", "On 13 June 2003 the Supreme Court, on the decision of Judge K.M., assumed jurisdiction over the appeal in cassation and decided to institute cassation proceedings in the applicant's case. 17. On 31 July 2003 the Supreme Court examined the applicant's appeal in cassation on merits and dismissed it within the ordinary review proceedings. The Supreme Court held its hearing in the absence of the applicant and in the presence of the prosecutor and victim in the criminal case. II.", "RELEVANT DOMESTIC LAW A. Provisions of the Code of Criminal Procedure governing cassation proceedings (as amended on 21 June 2001) 18. The relevant provisions read as follows: Article 348. Persons entitled to lodge an appeal “The following persons are entitled to lodge an appeal: 1. a convicted person...” Article 383. Court decisions that may be reviewed in cassation proceedings “The following decisions may be reviewed in cassation proceedings: ... 2) judgments and resolutions of a court of appeal given by it in appeal proceedings.", "Judgments and resolutions or rulings of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as rulings of courts of appeal given in respect to those judgments and resolutions or rulings with the exceptions of rulings by which the court of appeal cancels such decisions and sends the case for a new investigation or examination.” Article 384. Persons entitled to lodge an appeal in cassation or to file a cassation petition “Appeals in cassation against the court decisions referred to in part one of Article 383 of this Code may be lodged by the persons specified in Article 348 of this Code. Cassation appeals against the court decisions referred to in part two of Article 383 of this Code may be lodged by: 1) a convicted person...” Article 394. Examination of a case by a court of cassation “Cassation appeals and petitions against the court decisions referred to in part one of Article 383 of this Code shall be examined with a mandatory notice of that examination being served on the prosecutor and the persons referred to in Article 384 of this Code. Cassation appeals and petitions against the court decisions referred to in part two of Article 383 of this Code shall be examined within thirty days of receipt by the court of cassation, composed of three judges with the participation of a prosecutor.", "The court shall either assign the case for examination and notify the persons referred to in Article 384 of this Code accordingly or dismiss it...” Article 396. Results of the examination of a case by a court of cassation “As a result of the examination of a case within the cassation proceedings, the court shall make one of the following decisions: 1) uphold the judgment, resolution or ruling and dismiss the cassation appeal or petition; 2) quash the judgment, resolution or ruling and refer the case for a fresh investigation or trial before the first-instance court or review in appeal proceedings; 3) quash the judgment, resolution or ruling and terminate the case; 4) modify the judgment, resolution or ruling. ” B. Provisions of the Code of Criminal Procedure governing extraordinary review proceedings (as amended on 21 June 2001) 19. The relevant provisions read as follows: Article 400-4.", "Grounds for examination of the judgments within the extraordinary review proceedings “The final and binding judgments may be examined within the extraordinary review proceedings in view of: 1) newly disclosed circumstances; 2) incorrect application of the criminal law and fundamental breach of the requirements of criminal procedural law that have essentially impaired the correctness of the judgment (...)” Article 400-9. Request to examine a judgment within the extraordinary review proceedings “Parties to the proceedings and other persons entitled by law may lodge with the prosecutor a request for examination of the case on the grounds set forth in paragraph 1 of part one of Article 400-4 of this Code. Requests for examination of the case on the grounds set forth in paragraph 2 of part one of Article 400-4 of this Code may be lodged by the convicted person or his defender or legal representative (...)” THE LAW I. ACCESS TO A COURT 20. The applicant complained of lack of access to the Supreme Court on account of its refusal to review his case in the course of cassation proceedings.", "He relied on Article 6 § 1 which provides, in so far as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 21. The Government submitted that the applicant could no longer claim to be a “victim” of a breach of his right of access to a court as on 31 July 2003 the Supreme Court examined his appeal in cassation on its merits. They further submitted that the applicant's appeal in cassation was initially dealt with as if it was a request for extraordinary review proceedings due to a technical error. 22. The applicant disagreed.", "He contended that examination of his appeal in cassation on 31 July 2003 was prompted by his recourse to the Court and communication of the application to the respondent Government. 23. The Court finds that the victim status issue and the parties' arguments in that respect are closely linked to the substance of the applicant's complaint under Article 6 § 1 of the Convention. It should, therefore, be joined to the merits. 24.", "The Court considers, in the light of the parties' submissions, that the case raises issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. It finds that the applicant's complaints as to lack of access to a court are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 25.", "The Government did not comment on the merits of the complaint of lack of access to a court and maintained that application was inadmissible. 26. The applicant maintained his complaint. 27. The Court notes that a State which institutes courts of appeal or cassation is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (see, for example, Delcourt v. Belgium, 17 January 1970, § 25, Series A no.", "11). It reiterates that the right to a court, of which the right of access is one aspect, is not absolute and may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal, which must not impair the very essence of the right of access. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see, for example, Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). 28.", "Turning to the facts of the present case, the Court observes that the applicant's appeal in cassation, although lodged within ordinary cassation review proceedings, was examined and rejected by the Supreme Court as if it was a request for extraordinary review of his conviction without any reasons being given for such a decision and without any procedural decision taken (see paragraphs 18 and 19 above). The Government acknowledged that appeal in cassation was examined in the course of the extraordinary review proceedings erroneously. 29. The Court notes that after the present case was communicated to the Government, on 13 June 2003 (see paragraph 16 above) the Supreme Court instituted ordinary cassation review proceedings on the applicant's appeal in cassation, examined it on its merits and dismissed it. The national authorities however did not recognise in any way that the initial decision of 9 April 2002 (see paragraph 15 above), to deal with the applicant's appeal in cassation as if it was a request for extraordinary review, interfered with the applicant's right of access to the court of cassation.", "30. Moreover, the examination of the appeal in cassation on 31 July 2003 (see paragraph 17 above) was held in the absence of the applicant, while the prosecutor and the victim of the criminal offence were both present at the Supreme Court hearing. 31. Having regard to all the circumstances of the case, the Court considers that the applicant suffered an excessive restriction of his right of access to a court, and therefore of his right to a fair trial, which was never acknowledged or redressed by the authorities. There has consequently been a violation of that provision.", "It follows that the Government's preliminary objection as to the victim status (see paragraph 21 above), previously joined to the merits (see paragraph 23 above) must be dismissed. 32. There has accordingly been a breach of Article 6 § 1. II. REMAINDER OF THE COMPLAINTS 33.", "The applicant also complained under Article 6 §§ 1 and 2 that the criminal proceedings instituted against him were both unfair and excessively long. He further complained of a violation of Article 6 § 3 (e) in that he had not been allowed to use the Russian language in the proceedings before the domestic courts and had not been granted the assistance of an interpreter from Ukrainian to Russian. He further complained of an infringement of his right to private life and lack of an effective domestic remedy for his claims on account of the refusal of the domestic authorities to institute criminal proceedings against M.M.E. He relied on Articles 8 and 13 of the Convention in this respect. The applicant also complained of a violation of Article 2 § 1 of Protocol No.", "1 on account of the Supreme Court's refusal to examine his criminal case within the ordinary review proceedings. 34. The Court, having carefully considered the applicant's submissions, in the light of all the material in its possession, finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 35. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 37. The applicant submitted his claims for just satisfaction out of time. These submissions were not included in the case file for examination by the Court.", "Accordingly, the Court considers that there is no call to award any sum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join to the merits the Government's preliminary objection as to the applicant's victim status and dismisses it after having examined the merits; 2. Declares the complaint concerning lack of access to a court under Article 6 § 1 admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention.", "Done in English, and notified in writing on 20 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "FIRST SECTION CASE OF MARKOVIĆ v. CROATIA (Application no. 4469/02) JUDGMENT (Friendly settlement) STRASBOURG 21 October 2004 This judgment is final but it may be subject to editorial revision. In the case of Marković v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrP. Lorenzen,MrG.", "Bonello,MrsF. Tulkens,MrsN. Vajić,MrsE. Steiner,MrK. Hajiyev, judges,and Mr S. Quesada, Deputy Section Registrar, Having deliberated in private on 30 September 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 4469/02) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian nationals, Mr Ivan Marković and Mr Vladimir Marković (“the applicants”), on 9 January 2002. 2. The applicants were represented by Mr R. Radović, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms L. Lukina-Karajković.", "3. The applicants complained that the enactment of the Civil Obligations (Amendments) Act 1996 violated their right of access to court guaranteed by Article 6 § 1 of the Convention and their right to an effective remedy guaranteed by Article 13 of the Convention. 4. By a decision of 16 December 2003 the Court declared the applicants’ complaints admissible. 5.", "On 11 March and on 18 May 2004 the Government and the applicants, respectively submitted formal declarations accepting a friendly settlement of the case. THE FACTS 6. The applicants live in Zagreb. 7. On 28 March 1992 the applicants’ weekend house in Sesvete, Croatia, was blown up by unknown perpetrators.", "8. On 9 March 1995 the applicants instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia for their damaged property. 9. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996), the Zagreb Municipal Court stayed the proceedings on 5 April 1996.", "10. The proceedings resumed on 20 November 2003 pursuant to the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003). THE LAW 11. On 11 March 2004 the Court received the following declaration signed by the Government’s Agent: “I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Croatia offer to pay ex gratia EUR 10,000 to Mr Ivan Marković and Mr Vladimir Marković.", "This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, converted into the national currency on the date of payment and free of any taxes that may be applicable. It will be payable within three months from the date of delivery of the judgment by the Court pursuant to the Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.” 12.", "On 18 May 2004 the Court received the following declaration signed by the applicants: “I note that the Government of Croatia are prepared to pay ex gratia the sum of EUR 10,000 covering pecuniary and non-pecuniary damage as well as costs and expenses, converted into national currency on the date of payment and free of any taxes that may be applicable, to Mr Ivan Marković and Mr Vladimir Marković with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. The applicants accept the proposal and waive any further claims against Croatia in respect of the facts of this application. The applicants declare that this constitutes a final settlement of the case. This declaration is made in the context of a friendly settlement which the Government and the applicants have reached. The applicants further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention after delivery of the Court’s judgment.” 13.", "The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court). 14. Accordingly, the case should be struck out of its list of cases. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Decides to strike the case out of the list; 2. Takes note of the parties’ undertaking not to request a rehearing of the case before the Grand Chamber. Done in English, and notified in writing on 21 October 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaChristos Rozakis Deputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF NATALYA GERASIMOVA v. RUSSIA (Application no. 24077/02) JUDGMENT STRASBOURG 21 July 2005 FINAL 21/10/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Natalya Gerasimova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL.", "Loucaides,MrsF. Tulkens,MrP. Lorenzen,MrsN. Vajić,MrsS. Botoucharova,MrA.", "Kovler, judges, and Mr S. Quesada, Deputy Section Registrar, Having deliberated in private on 30 June 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24077/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Natalya Nikolayevna Gerasimova, on 21 May 2002. 2. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. On 25 March 2004 the Court decided to communicate the complaint about non-enforcement of a final judicial decision to the Government and declared the remainder of the application inadmissible. Under the provisions of Article 29 § 3 of the Convention, the Court decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1942 and lives in Moscow. 5. In June 2001 the applicant was advised by the Housing Policy Department of the North-Eastern Administrative District Council that the building in which she owned a flat had been scheduled for demolition within the framework of a city-wide programme for reconstruction of Soviet-era housing. The applicant was offered a substitute flat in a remote area of Yuzhnoye Butovo. After the applicant had rejected the offer, the Council sued her for eviction and resettlement.", "6. On 27 September 2001 the Babushkinskiy District Court of Moscow found for the Council. It ordered the applicant's eviction from her old flat and transferred her title in it to the Council's account. It also held that the new flat in Yuzhnoye Butovo should be transferred into the applicant's ownership. On 6 December 2001 the Moscow City Court upheld the judgment of 27 September 2001.", "7. On 24 January 2002 enforcement proceedings were opened. On 2 April 2002 bailiffs relocated the applicant into the new flat. 8. The applicant asked the court to clarify the judgment of 27 September 2001.", "She submitted that title in the new flat had not been transferred to her because the local council had asked her to pay for additional living surface and to advance the registration fee. 9. On 26 August 2002 the Babushkinskiy District Court delivered a procedural order (определение). It interpreted Article 49.3 of the Housing Code (see below) in the sense that, where eviction was required because of demolition of a building, registration fees were to be borne by the party who sought eviction, that is the North-Eastern District Council. 10.", "On 10 April 2003 a court bailiff requested the Municipal Housing Department of the North-Eastern Administrative District Council to report why the judgment of 27 September 2001, as clarified on 26 August 2002, remained unenforced in the part concerning the transfer of title to the applicant. 11. On 7 May 2003 the Municipal Housing Department responded to the bailiff that the judgment had not imposed the obligation to transfer title on the Department and that it was not competent to act on behalf of the North-Eastern Administrative District Council. 12. According to the Government, on 4 December 2003 the Presidium of the Moscow City Court quashed, by way of supervisory-review proceedings, the procedural order of 26 August 2002 and remitted the matter for a fresh examination.", "On 20 May 2004 the Babushkinskiy District Court refused the applicant's request for a clarification of the judgment of 27 September 2001. Copies of these decisions were not made available to the Court. II. RELEVANT DOMESTIC LAW Civil Code of the Russian Federation 13. Article 223 § 2 establishes that where the transfer of property is subject to State registration, the purchaser acquires title from the moment of such registration.", "Housing Code of the RSFSR (in force at the material time) 14. Article 49.3 established that in case of demolition of a block of flats, the local authority, company or organisation that performed the demolition should grant the evicted owners title in an equivalent flat or any other compensation. Law on State Registration of Rights to Immovable Property or Transactions with It (no. 122-FZ of 21 July 1997) 15. Sections 13 § 1 and 16 § 4 provide that State registration may be carried out upon production of the required documents and payment of the registration fee.", "16. Pursuant to section 17 § 1, a final judicial decision is a basis for State registration of a right to immovable property or a transaction with it. Section 28 § 3 (as amended on 9 June 2003) requires judicial bodies to submit final judgments and decisions concerning rights to immovable property to the registration authorities within three days of their delivery. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO.", "1 17. The applicant complained that the judgment of 27 September 2001, as upheld on 6 December 2001, has not been enforced in the part requiring the transfer of title in the new flat. The Court considers that these complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Burdov v. Russia, no. 59498/00, § 26, ECHR 2002‑III).", "Article 6, in the relevant part, provides as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Arguments by the parties 18.", "The Government submit that there has been no violation of the Convention or the Protocols thereto because the applicant has obtained title in the new flat from the moment of coming into force of the judgment of 27 September 2001. From that moment she has been able to use, possess and alienate the flat. At present the State registration of her right of ownership has not been performed, but the applicant may apply for registration at any moment, subject to the payment of the registration fee. The Council may not apply for registration in the applicant's stead. 19.", "The applicant submits that she was evicted contrary to her wishes. In such circumstances it would be reasonable to expect that the domestic authorities would gather the required documents and perform the registration. Moreover, the amount of the registration fee is commensurate with her monthly pension. On the other hand, she never refused to come and collect the ownership certificate from the registration authority. B. Admissibility 20.", "The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 21. Turning to the merits of the case, the Court observes that on 27 September 2001 the domestic court issued a judgment, according to which the applicant was to obtain the right of ownership of the substitute flat.", "Enforcement proceedings were instituted, the applicant got the keys to the flat and moved into it, but the State registration of the transfer has not been performed to date. 22. The Government's submission that the applicant acquired title from the moment of coming into force of the judgment appears to be at variance with Article 223 of the Russian Civil Code, pursuant to which title to immovable property is considered to have been acquired from the moment of State registration. The Court notes that the Government did not refer to any provision of the domestic law supporting their interpretation or to any other legal rule which could have been more appropriately applied to the applicant's case. It follows that the transfer of the flat cannot be deemed completed until the State registration has been performed.", "Accordingly, the judgment of 27 September 2001, as upheld on 6 December 2001, has not been enforced in the part concerning the transfer of title. 23. The Court further notes that the failure to enforce the judgment of 27 September 2001 at the initial stage could have been due to the court's omission to specify which of the applicant or the Council was to carry out State registration of the applicant's title and bear the associated costs. However, even after the same court issued a special clarification imposing the duty to register the transfer of title on the Council, the domestic authorities do not appear to have taken any steps to enforce the judgment. Instead, they chose to attack the clarification by way of supervisory-review proceedings.", "As the Government failed to submit copies of the judicial decisions of 4 December 2003 and 20 May 2004, it is impossible to determine the domestic courts' current approach to the distribution of the obligation to perform State registration. In any event, the Government have not contested that the enforcement proceedings are now pending, but the judgment has remained without enforcement to date, that is for more than four years since it was issued. 24. The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, e.g., Gizzatova v. Russia, no.", "5124/03, § 19 et seq., 13 January 2005; Wasserman v. Russia, no. 15021/02, § 35 et seq., 18 November 2004; Burdov, cited above, § 34 et seq.). 25. Having examined the material submitted to it, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that by failing for years to comply with the enforceable judgment in the applicant's favour the domestic authorities prevented her from obtaining title in property she could reasonably have expected to acquire.", "26. There has accordingly been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 28. The applicant claimed 1,900 US dollars (USD) in respect of pecuniary damage, representing the expenses incurred in connection with her move into the new flat. She claimed a further USD 50,000 in respect of non-pecuniary damage. 29.", "The Government did not comment. 30. The Court notes that the claim for the pecuniary damage refers to the applicant's eviction and resettlement into the new flat. However, it declared the complaints relating to these events inadmissible in its decision of 25 March 2004. As the applicant did not claim that the non-enforcement of the judgment of 27 September 2001, as upheld on 6 December 2001, caused her pecuniary damage, the Court rejects her claims in that part.", "As regards the claim for non-pecuniary damage, the Court, deciding on an equitable basis, considers that the finding of a violation constitutes sufficient just satisfaction. B. Costs and expenses 31. The applicant claimed 1,175 Russian roubles for postal and copying expenses. The Government did not comment.", "32. Having regard to all materials in its possession, the Court is satisfied that these expenses have been actually and necessarily incurred and were reasonable as to quantum. It awards the applicant 1,175 Russian roubles in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, RUR 1,175 (one thousand one hundred seventy-five Russian roubles) in respect of costs and expenses, plus any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 21 July 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago QuesadaChristos Rozakis Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF COJAN v. ROMANIA (Application no. 54539/12) JUDGMENT STRASBOURG 28 April 2015 FINAL 28/07/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Cojan v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Luis López Guerra,Ján Šikuta,Dragoljub Popović,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 7 April 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "54539/12) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Vasile Cojan (“the applicant”), on 21 August 2012. 2. The applicant was represented by Ms R. E. Dedu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3.", "On 19 June 2013 the complaint concerning the conditions of the applicant’s detention was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and is currently detained in Giurgiu Prison. 5.", "On 19 May 2010 the applicant was placed in pre-trial detention on suspicion of having committed drug-related crimes. He was convicted on 6 May 2011 by the Bucharest County Court and sentenced to eighteen years’ imprisonment. The decision became final on 5 June 2012. 6. The applicant was held in the pre-trial detention facilities of the Bucharest Direction of Criminal Investigations until 16 November 2010.", "On that date he was transferred to Rahova Prison, where he remained until 13 August 2012. 7. He described the overall conditions of detention as follows: overcrowded cells, lack of natural light and lack of fresh air. In particular he described cells that measured about 19 sq. m and were 2.2 m high; each cell containing eight beds constantly occupied at full capacity; there was no natural light, only artificial light provided by one 40 W bulb which was insufficient; he had no access to fresh air.", "There was no refrigerator to store food in proper conditions. He shared cells with individuals arrested for violent crimes and there had been no means of summoning the guards, even though several violent incidents had taken place between the detainees. 8. According to the official prison records adduced by the Government, in the police detention facilities the applicant had been placed in cells situated in the basement (demisol), the first measuring 9 sq. m and containing four beds and the second measuring 13.5 sq.", "m and having six beds. The cells were occupied at full capacity. The cells had a table and chairs as well as a squat toilet, sink and shower separated from the living space by a curtain. The detainees had access to running water, and the cells were heated during winter. There was access to natural light, as each cell was provided with a window, but also to artificial light provided by a lamp placed in each cell, above the door, and protected by an iron grille.", "Personal hygiene was effected by means of products provided by the prison or acquired by the detainees themselves. 9. According to the same official information, in Rahova Prison the applicant had been held in different cells, all measuring 21 sq. m and containing eight beds (except for one cell where there were only six beds), a table, chairs and a support for a TV set. Adjacent to the cell there was a bathroom equipped with a toilet, sinks and a shower.", "Cold water was available continuously and hot water was available twice a week. The cell was heated to 18oC during the winter. The applicant was allowed to exercise for two hours daily in the interior courtyard and had access to outdoor and indoor sport facilities. II. RELEVANT DOMESTIC LAW 10.", "A summary of the relevant regulations drafted by the Council of Europe’s Committee of Ministers and by the United Nations (the Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which was held in Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV), of 31 July 1957, and 2076 (LXII), of 13 May 1977) as well as the findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and the reports by the Council of Europe Commissioner for Human Rights – which were drawn up following numerous visits to Romanian prisons, including Bucharest-Rahova Prison – can be found in Iacov Stanciu v. Romania (no. 35972/05, §§ 120-129, 24 July 2012). The CPT’s findings concerning the conditions of detention in Bucharest police detention facilities are described in Căşuneanu v. Romania, no. 22018/10, § 43, 16 April 2013). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 11. The applicant complained about the conditions of his detention in Bucharest police detention facilities and in Rahova Prison. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 12. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 13. The applicant reaffirmed the bad conditions of detention, in particular concerning overcrowding, bad hygiene and unsatisfactory food, as a result of which he had become ill and depressed. He also considered that by holding him in such conditions, the authorities had deliberately tried to humiliate him.", "14. The Government referred to the official description of the prison conditions and asserted that the authorities had done everything within their power to ensure that conditions in pre-trial detention were adequate. They also noted that the applicant had not complained to the domestic authorities about the conditions in which he had been held. 15. The Court refers to the principles established in its case-law regarding conditions of detention (see, for instance, Kudła v. Poland [GC], no.", "30210/96, §§ 90-94, ECHR 2000‑XI; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Iacov Stanciu, cited above, §§ 165-170). It reiterates, in particular, that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3; the assessment of this minimum is, 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). 16. The Court has considered an extreme lack of space to be a central factor in analysing whether an applicant’s detention conditions complied with Article 3 (see Karalevičius v. Lithuania, no.", "53254/99, § 39, 7 April 2005). In a series of cases the Court has concluded that a clear case of overcrowding gives sufficient cause for finding that Article 3 of the Convention has been violated (see among many others, Colesnicov v. Romania, no. 36479/03, §§ 78‑82, 21 December 2010, and Budaca v. Romania, no. 57260/10, §§ 40‑45, 17 July 2012). Moreover, it has already found violations of Article 3 of the Convention on account of the physical conditions of detention in Romanian detention facilities, including the Bucharest Remand Centre and Rahova Prison, especially with respect to overcrowding and lack of hygiene (see, for example, Căşuneanu, cited above, § 62, and Geanopol v. Romania, no.", "1777/06, § 66, 5 March 2013). 17. In the case at hand, the Court observes, based on all the material at its disposal, that the personal space allowed to the applicant in detention fell short of the requirements laid down in the case-law. The Government have failed to put forward any argument that would allow the Court to reach a different conclusion. 18.", "Moreover, the applicant’s submissions in this respect correspond to the general findings by the CPT in respect of Romanian prisons (see paragraph 10 above). 19. The Court concludes that the conditions of detention caused the applicant harm that exceeded the unavoidable level of suffering inherent in detention and they have thus reached the minimum level of severity necessary to constitute degrading treatment within the meaning of Article 3 of the Convention. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s pre-trial detention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 20. 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 21. The applicant claimed 6,000 euros (EUR) in respect of pecuniary damage, representing salary that he was unable to receive during his incarceration, and EUR 20,000 in respect of non-pecuniary damage for the stress and frustration endured in detention. 22.", "The Government alleged that the request for pecuniary damage went beyond the scope of the case, which was not concerned with the lawfulness of the applicant’s detention and was thus irrelevant as regards his lost potential earnings. They further argued that the amount requested with respect to non‑pecuniary damage was excessive. 23. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 5,250 in respect of non‑pecuniary damage.", "B. Costs and expenses 24. The applicant also claimed EUR 24,000 for the costs and expenses incurred before the domestic courts. He submitted invoices amounting to 108,204 Romanian Lei representing lawyer’s fees from the domestic proceedings relating to the extension of his detention. 25.", "The Government argued that the proceedings instituted by the lawyer on behalf of his client had not been of relevance to the complaint examined by the Court in the present case. 26. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court agrees with the Government’s observations and rejects the claim. C. Default interest 27.", "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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaint under Article 3 of the Convention admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,250 (five thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the respondent State’s currency at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsJosep CasadevallRegistrarPresident" ]

[ "FIFTH SECTION CASE OF OZOLS v. LATVIA (Application no. 61257/08) JUDGMENT STRASBOURG 13 July 2017 This judgment is final but it may be subject to editorial revision. In the case of Ozols v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Mārtiņš Mits,Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 20 June 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 61257/08) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Jānis Ozols (“the applicant”), on 10 December 2008.", "2. The applicant was represented by Mr M. Krūmiņš, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce. 3. On 19 February 2014 the complaint under Articles 6 §§ 1 and 3(d) of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejected it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1970 and lives in Riga.", "5. In 2000 a criminal investigation was conducted into suspected irregularities in customs procedures with respect to the transit of vehicles. As a result of these unlawful activities, it had been possible for third persons to legalise foreign goods (the vehicles) in Latvia using falsified documents. 6. Seven customs officials, including the applicant, were charged with exceeding their official powers or failing to fulfil their duties.", "Each of the officials had allegedly acted unlawfully at different stages of the customs procedures. The applicant was charged with negligence which had caused substantial harm to the State and public interest. This charge was brought in connection with the processing of documentation for a used semi-trailer. 7. Several witnesses were questioned during the pre-trial stage, including witness E.A., a Latvian national residing in Latvia, who had purchased one of the vehicles.", "A. First instance court proceedings 8. On 16 December 2005 the Riga Regional Court, acting as the court of first instance, found the applicant guilty and imposed on him a fine to the amount of five minimum monthly salaries. 9. With respect to the applicant, the court established that on 31 March 1999 at a customs control point he had acted contrary to the applicable regulations in the processing of documentation for the importation of the used semi-trailer.", "10. In particular, the applicant had accepted a transit declaration from a person who had not been a declarant’s authorised representative. He had not verified whether the person submitting a power of attorney had been the person to whom it had been issued. The applicant had not verified whether the used semi-trailer had been in the customs zone. Further, he had not issued an administrative violation record on the non-compliance with the forty-eight hour time-limit for the delivery to the customs office of the used semi-trailer.", "Furthermore, the documentation processed had been incomplete. 11. The regional court relied on a report drawn up by the State revenue service, dated 24 March 2000. The report stated that the applicant had not complied with a number of applicable regulations. 12.", "Further, the court referred to the pre-trial statement of witness E.A. who was summoned to a court hearing but could not attend due to his hospitalisation. The court took note of a medical certificate to that effect. 13. E.A.", "had testified that he had purchased the semi-trailer at the beginning of 1999. He had come to the customs control point together with the vendor’s representative. The vendor’s representative had turned first to a customs representative and then to a customs officer who processed the documentation. The semi-trailer had not been at the customs warehouse and it could not have been inspected by the customs officer. According to the documentation, the customs clearance of the vehicle was carried out by the applicant.", "After the statements were read out, the applicant’s defence asked the court to explain on what grounds a certified copy of the statements of E.A. was included in the case-file and where was its original. The request was upheld and the prosecutor provided a reply. 14. The court relied on a set of documentary evidence attesting to the fact that the documentation for the semi-trailer in question had been processed by the applicant and that the semi-trailer had not entered the customs territory.", "15. The applicant appealed against the first instance court judgment. B. Second instance court proceedings 16. At the appellate hearing on 8 January 2007, E.A.", "could not be summoned to the hearing because he was abroad at the time. The applicant requested that E.A. be summoned to the appeal proceedings. 17. The appellate court decided that this request be granted and E.A.", "was summoned to the hearings of September 2007 and February 2008. On both occasions E.A. asked the appellate court in writing to excuse his absence from the hearing on the grounds of hospitalisation (in September 2007) and his being abroad and having a technical problem with a car which had prevented him from coming to the hearing (in February 2008). He further asked the court to read out his pre-trial statements. 18.", "On 11 February 2008 the appeal proceedings were resumed. 19. During the court hearing, the applicant’s defence and the court questioned a defence witness – a customs expert on the customs procedure and its application. 20. E.A.", "did not appear at the court hearings on 11 and 12 February 2008. The prosecutor submitted that, by way of such conduct, E.A. avoided appearing in court and that this gave grounds for his testimony to be read out. 21. The applicant’s defence counsel disagreed that E.A.’s testimony could be read out.", "At the same time, the defence counsel submitted that he “[did] not need witness [E.A.] anymore ... the evidence [previously] given by the expert [was sufficient]. We do not uphold the request anymore. I consider that his statements should not be read out... I consider that there are no justifiable grounds for [E.A.]", "not appearing in court”. 22. The appellate court ruled that E.A.’s testimony be read out in accordance with section 501 of the Criminal Procedure Law. 23. After the testimony was read out, the applicant’s defence explicitly stated that they did not have any requests and that the court adjudication could be terminated.", "24. On 15 February 2008 the appeal court upheld the applicant’s conviction. It considered that the applicant had inadequately verified the power of attorney (see paragraph 10 above). 25. The appellate court referred to the evidence of witness E.A., i.e., that the semi-trailer had not been at the customs warehouse and the customs officer could not have inspected it.", "It also relied on the logbook indicating that the semi-trailer had not entered the customs territory. The court also relied on the applicant’s statements in which he considered that the verification on the merits had been carried out by the customs broker and therefore those tasks fell outside his duties. The appeal court dismissed the applicant’s contention that he had inspected the semi-trailer. 26. Furthermore, the appeal court held that the applicant had inadequately verified the payment documents.", "It reasoned that the payment orders in question had given the appearance that a transfer of funds had been made to the State. However, a bank report indicated that these orders had neither been registered nor confirmed by the bank. 27. The appeal court found that the applicant had formally performed his official duties. However, it deemed that the applicant’s contention – that a customs broker and not a customs officer had been responsible for the truthfulness of the information – indicated that, in fact, the applicant had not verified anything.", "28. In his appeal on points of law the applicant argued that the appellate court had not ensured the attendance of E.A. He insisted that the evidence attested to the fact that he had verified the power of attorney and had compared the bank accounts indicated in the payment orders. No electronic database had existed at the time and the only way to check the payment documents had been to compare the bank accounts listed. C. Final court decision upon appeal on points of law 29.", "On 1 July 2008 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. 30. It reasoned that the appellate court had verified the testimonies of witnesses in accordance with section 501 of the Criminal Procedure Law. Also, the appeal court had made efforts to establish E.A.’s whereabouts and to bring him to court. Therefore, the appeal court had done everything possible in order to call E.A.", "to court. 31. This decision was final. II. RELEVANT DOMESTIC LAW 32.", "In accordance with section 501(3) of the Criminal Procedure Law, a person’s testimony given earlier may be read out in court if the person is not present at the court hearing due to a reason which makes attendance impossible. Section 501(4) of the law provides that a testimony may also be read out in court if the person avoids going to court or refuses to testify. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 §§ 1 and 3 (d) OF THE CONVENTION 33. The applicant complained that he and his defence counsel were deprived of the opportunity to question witness E.A.", "and that the domestic courts had not provided sufficient reasoning on his guilt, thus violating Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... . 3. Everyone charged with a criminal offence has the following minimum rights: (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” A. Admissibility 34. 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 35.", "The applicant alleged that witness E.A. avoided appearing before the domestic courts without justified reasons and that the domestic court did not make efforts to ensure his attendance. He further submitted that even though at the final stages of court adjudication he had not insisted on the attendance of E.A., he had been constantly against the reading out of his statements at the trial. Finally, he stated that his trial could not be considered as fair because the judgment failed to indicate why it preferred some evidence but did not trust other. 36.", "The Government contended firstly, that the applicant had waived his right to summon witness E.A. (see paragraph 21 above). Secondly, they argued that the authorities had shown that they had made efforts to summon the witness. Thirdly, it was argued that the testimonies of witness E.A. could not be considered sole or decisive and that, finally, the applicant had been found guilty on the basis of hard evidence and that the domestic courts had provided detailed reasoning thereof.", "2. The Court 37. The Court reiterates that the guarantees in paragraph 3(d) of Article 6 of the Convention are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, ECHR 2015).", "The principles to be applied when a witness does not attend a public trial were set in the case of Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-147, ECHR 2011), and further clarified in Schatschaschwili, cited above, § 107 and §§ 111‑131. These principles have been recently summarised in the case of Seton v. the United Kingdom, (no. 55287/10, § 59, 31 March 2016), as follows: “... [T]he absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence.", "The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair.” 38. The Court will apply the above principles in turn. (a) Whether there was a good reason for the non-attendance of witnesses E.A. at the trial 39.", "With regard to the first question as to whether there was a good reason for the non-attendance of E.A. at the trial, the Court reiterates that the need for all reasonable efforts on the part of the authorities to secure the witness’s attendance at the trial implies careful scrutiny by the domestic courts of the reasons given for the witness’s inability to attend trial, having regard to the specific situation of each witness (see Schatschaschwili, cited above, § 122). 40. In the present case the Court observes that on several occasions the first-instance court and the appellate court attempted to secure the attendance at the trial of witness E.A. who was absent either due to his hospitalisation or being abroad and having technical problems with his car preventing him from appearing at the court hearings (see paragraphs 12 and 17 above).", "Even though the absence on health grounds can be considered as a valid justification for non-appearance of a witness (see, for instance, Bobeş v. Romania, no. 29752/05, § 39, 9 July 2013), a failure to comply with the court summons due to E.A. being abroad could have been overcome by the court compelling the witness to appear at the hearing, which was not the case here. 41. Being required to have regard to the specific situation of each case, the Court notes, however, that before discontinuing compelling E.A.", "to attend a hearing, the appellate court consulted the applicant’s counsel who explicitly revoked the request that witness E.A. be summoned to trial (see paragraph 21 above). In this regard the Court reiterates that before an accused can be said to have waived an important right under Article 6 of the Convention, it must be shown that he could reasonably have foreseen the consequences of his conduct in this regard (see Idalov v. Russia [GC], no. 5826/03, § 172, 22 May 2012). Taking note of the defence’s views that the presence of E.A.", "was not needed and of the legislative provisions on the processing of statements of absent witnesses (see paragraph 32 above), the applicant must have been aware that the domestic court might decide to read out E.A.’s testimony. 42. To sum up, even though the appellate court could have shown more efforts in summoning witness E.A. to the trial, it should be weighed against the applicant’s waiver of the right to summon this witness. The Court therefore concludes that in these circumstances the absence of witness E.A.", "should not weigh heavily in the balance in the examination of the overall fairness of the proceedings. 43. At the same time, observing the defence counsel’s clear objections against reading out E.A.’s testimony, the Court will continue assessing whether the reading out of these statements had a negative impact on the overall fairness in the criminal case. In this regard the Court will apply the above-mentioned principles (see paragraph 37 above). (b) Whether the evidence of the absent witnesses E.A.", "was the sole or decisive basis for the applicant’s conviction 44. As to the weight of the absent-witness’ evidence, the Court cannot conclude that it had a sole and decisive role. The Court observes that the applicant’s guilt was established on the basis of a set of evidence, including the applicant’s own statements and of documentary evidence attesting to the fact that he had failed to comply with his duties (see paragraphs 25-27 above). In addition, the applicant’s complaints to the domestic courts do not show that he had at any time considered that E.A.’s statements were decisive for his conviction. Nevertheless, given the need under Article 6 to assess the fairness of the proceedings taken as a whole, the Court still needs to determine whether there were sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence (see Seton, cited above, § 64).", "(c) Whether there were sufficient counterbalancing factors 45. On the existence of counterbalancing factors, the Court observes that, taking note of the relatively less important weight of E.A.’s statements, the possibility for the applicant to state his own account of the facts and to point out to any incoherence in the statements of E.A. could have counterbalanced any potential difficulties imposed on the defence (see in this regard Aigner v. Austria, no. 28328/03, § 43, 10 May 2012). The Court observes, firstly, that the applicant was at all times represented by counsel who effectively carried out the applicant’s defence by, inter alia, questioning another witness (see paragraph 19 above).", "Secondly, the first‑instance court had ordered the prosecutor to provide further information with regard to the recording of the statements of witness E.A. (see paragraph 13 above, compare with the case of Schatschaschwili, cited above, § 149), and the applicant did not raise further objections in that regard. Even though counsel objected to E.A.’s statements being read out during the hearing, at no moment did the applicant submit that those statements had been untrue. 46. Other significant safeguards are domestic court’s cautious approach to the untested evidence (see Schatschaschwili, cited above, § 126) and the availability at the trial of corroborative evidence supporting the untested witness statement (ibid., § 128).", "In the present case the appellate court’s judgment shows that it had recourse to a number of evidence (see paragraph 25 above). It derives from the appellate court’s reasoning that E.A.’s statements were used to support the other evidence (ibid. ; see also in this regard Mariana Marinescu v. Romania, no. 36110/03, § 79, 2 February 2010). The Court therefore considers that the appellate court treated E.A.’s statements in a careful manner.", "47. Next, the Court has considered that another safeguard is the possibility offered to the defence to put its own questions to the witness indirectly (see Schatschaschwili, cited above, § 129, with case-law cited there). The Court observes that the applicant was afforded an effective opportunity to come up before the appellate court with comments on E.A.’s statements or with any additional questions thereof, but that he did not exercise this right (see paragraph 23 above). 48. Finally, as regards the reasoning of the domestic court’s decision, the Court reiterates that, although Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, it cannot be interpreted as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, no.", "16034/90, 19 April 1994, §§ 59 and 61, Series A no. 288). In the present case, it is demonstrated by the documents submitted to the Court that the domestic courts gave sufficient arguments to enable the applicant to understand the reasons for his conviction (see to the contrary, for example, Caka v. Albania, no. 44023/02, § 110, 8 December 2009). 49.", "The foregoing considerations are sufficient to enable the Court to conclude that the fact that the applicant could not question witness E.A. did not affect the overall fairness of the criminal case and that there is no arbitrariness in the reasoning of the domestic courts. There has accordingly been no violation of Article 6 §§ 1 and 3 (d) of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention. Done in English, and notified in writing on 13 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginAndré PotockiActing Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BACZÚR v. HUNGARY (Application no. 8263/15) JUDGMENT STRASBOURG 7 March 2017 FINAL 07/06/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Baczúr v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President,András Sajó,Nona Tsotsoria,Paulo Pinto de Albuquerque,Krzysztof Wojtyczek,Egidijus Kūris,Iulia Motoc, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 31 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 8263/15) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr István Baczúr (“the applicant”), on 12 March 2013. 2. The applicant was represented by Mr D. Karsai, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.", "3. The applicant complained, in particular, of a significant decrease in the benefit he had received on account of his reduced capacity to work. He relied on Article 1 of Protocol No. 1 as well as on Articles 6, 8, 13 and 14 of the Convention. 4.", "On 21 April 2015 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1958 and lives in Nagykozár. 6. The applicant had been working as a tax inspector.", "In 1996 he applied for early retirement on account of disability. As of 1 April 1996, he was declared to have lost 67% of his capacity to work and was granted a disability pension of 114,880 Hungarian forints (HUF) per month (approximately 370 euros (EUR) at the rate of January 2017). That disability assessment was maintained in 1999, 2003 and 2006. 7. The relevant assessment methodology changed as of 1 January 2008.", "The applicant’s case was reviewed under the new rules in 2009. Without any significant change in his state of health having occurred, he was then found to have lost 50% of his working capacity. As a consequence, his disability pension was terminated and, as of 1 July 2009, he was declared suitable for institutional rehabilitation and granted a monthly rehabilitation allowance in the amount of HUF 152,820 (approximately EUR 490), minus payroll deductions. Under the relevant statute, the benefit could only be granted for a limited period, namely until 31 October 2011 in the applicant’s case. The law allowed for one extension of the time-limit, making the maximum deadline for the benefit 30 June 2012.", "However, under the law, the overall period allowable for rehabilitation could not exceed three years. 8. The monthly amount payable evolved in the period preceding the deadline. On expiry, it was HUF 173,980 (approximately EUR 570) per month, minus HUF 17,398 in payroll deductions, resulting in a net sum of HUF 156,585 (approximately EUR 510). 9.", "Meanwhile, on 29 December 2011 Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity was enacted. It came into effect on 1 January 2012 and introduced a new system of allowances. 10. On 28 March 2012 the applicant applied for a disability allowance under the new law.", "On 8 May 2012 he was medically examined before an expert panel of the National Rehabilitation and Social Welfare Authority. The applicant’s state of health was rated at 46% and he was classified as being suitable for rehabilitation within a time-frame of thirty-six months. The authority initially granted him HUF 41,850 (approximately EUR 140) per month in disability allowance, as of 1 July 2012. 11. On appeal, the applicant’s health score was maintained but the second-instance authority no longer recommended his rehabilitation.", "The monthly disability allowance corresponding to his situation was eventually set at HUF 55,800 (approximately EUR 180). 12. The applicant sought a judicial review before the Pécs Administrative and Labour Court, but in vain. On 26 May 2014 the Kúria rejected his petition for review on the grounds that he had not relied on any particular breach of the law, as required by the Code of Civil Procedure. 13.", "Following a further legislative amendment of 1 April 2014, the applicant became entitled to a disability allowance of HUF 159,100 (approximately EUR 520) per month retroactively as of 1 January 2014. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 14. The applicant complained that the drastic decrease in his monthly disability allowance, which had prevailed between 1 July 2012 and 31 December 2013, amounted to an unjustified deprivation of possessions in view of the fact that his underlying medical condition had not changed.", "He relied on Article 1 of Protocol No. 1 to the Convention and Articles 6, 8, 13 and 14 of the Convention. The Court considers that the complaint falls to be examined under Article 1 of Protocol No. 1 alone, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 15. The Government argued that the application was incompatible ratione materiae with the provisions of the Convention. They essentially reiterated the arguments they had put forward in the case of Béláné Nagy v. Hungary ([GC], no. 53080/13, §§ 60-66, 13 December 2016), emphasising, as an additional and crucial element, that the present application concerned a fixed-term benefit which, on its expiry, did not create any “assertable right” or “legitimate expectation” enabling the applicant to avail himself of Article 1 of Protocol No. 1 in order to challenge the reduced benefit granted to him in the period complained of.", "16. The applicant contested that view. 17. The Court considers that the Government’s objection is so closely linked to the substance of the applicant’s complaint that it should be joined to the merits (see Béláné Nagy, cited above, § 71). It further notes that the application is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 18. As to the applicability of Article 1 of Protocol No.", "1, the applicant submitted that, given that his state of health was permanently impaired, he legitimately expected an adequate benefit from the State throughout, notwithstanding the fact that the statutory time-frame for rehabilitation was a fixed-term one. Any change in the rate of his health impairment was artificial and had resulted merely from the 2008 change in the scoring methodology. 19. As to compliance with Article 1 of Protocol No. 1, the applicant accepted that the measures underlying his grievance had pursued the general interest of overhauling the system of disability benefits and had been lawful.", "However, he was of the view that the interference he had suffered was disproportionate in that two-thirds of his benefit had been eliminated for a period of one and a half years, notably from 1 July 2012 until 31 December 2013 (see paragraphs 10 and 13 above). 20. The Government submitted that even if Article 1 of Protocol No. 1 were applicable, the applicant had not sustained any interference with his rights under that provision, since there was no basis in domestic law for him to claim the continuous payment of an unchanged disability benefit, no matter how the circumstances evolved. Moreover, even assuming the existence of an interference, the measures applied in the applicant’s case flowed directly from the relevant rules of the domestic law as amended and pursued the general interest of rationalising the system of disability benefits.", "They could by no means be considered as disproportionate since (i) the impugned period had lasted only eighteen months; (ii) the applicant had been in receipt of a benefit even during that time; (iii) the amount of that benefit had exceeded one-third of his previous benefit and almost equalled 60% of the minimum subsistence income relevant in the years 2012 and 2013; and (iv) the 2014 amendment, consisting in an equitable adjustment of the law, had resulted in partial compensation for the applicant. 2. The Court’s assessment 21. The Court has summarised its position on the applicability of Article 1 of Protocol No. 1 in cases similar to the present one in paragraphs 72 to 110 of the Béláné Nagy judgment (cited above).", "It sees no reason to depart from those considerations. 22. In particular, the Court reiterates that, in the field of social-security benefits, “for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which ... may not fall short of a sufficiently established, substantive proprietary interest under the national law” (see Béláné Nagy, cited above, § 79). 23. It transpires from the facts of the present application that, since 1996, the applicant has been continuously entitled, under one legal regime or another, to receive disability benefits from the State.", "For the Court, this element gains particular significance when dealing with the Government’s argument pointing to the fixed-term character of the rehabilitation allowance. It has not been disputed by the Government that the applicant’s health impairment has, by and large, remained unchanged throughout the entire period since 1996. This was reflected repeatedly by the domestic authorities’ consecutive decisions granting him various related benefits. 24. The Court is therefore satisfied that the applicant’s claim for disability benefit during the eighteen-month period in issue (from 1 July 2012 until 31 December 2013) constituted a “sufficiently established, substantive proprietary interest under the national law”, just as it had in the preceding or subsequent periods.", "This holds true irrespective of whether the benefit in a given period was granted for a definite or an indefinite duration, since the underlying medical condition remained constant. 25. It follows that Article 1 of Protocol No. 1 is applicable and the Government’s preliminary objection of incompatibility ratione materiae must be dismissed. 26.", "Moreover, the Court cannot but emphasise that, as of 1 July 2012, the applicant’s benefit had been reduced to approximately one-third of its previous value – a situation which lasted eighteen months, since the applicant became entitled to a higher disability allowance calculated according to a further legislative amendment only as of 1 January 2014 (see paragraphs 10-13 above). It must therefore be concluded that his right to receive social-security benefits on account of his ailments was interfered with. It remains to be ascertained whether the interference was justified. 27. A synopsis of the Court’s position on compliance with Article 1 of Protocol No.", "1 in this field can be found in paragraphs 112 to 118 of the Béláné Nagy judgment (cited above). Those considerations are also valid in the present case. 28. The Court notes at the outset that the measure complained of had undisputedly a clear basis in national law; and it accepts that it corresponded to the general interest attached to the rationalisation of the social-security system. At this juncture, the Court reiterates that “the fact that a person has entered into and forms part of a State social-security system (even if a compulsory one, as in the instant case) does not necessarily mean that that system cannot be changed, either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension (see, mutatis mutandis, Carson and Others v. the United Kingdom [GC], no.", "42184/05, §§ 85-89, ECHR 2010; and Richardson v. the United Kingdom (dec.), no. 26252/08, § 17, 10 April 2012). Indeed, the Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situations (see Wieczorek v. Poland, no. 18176/05, § 67, 8 December 2009)” (see Béláné Nagy, cited above, § 88). The Court would stress that, in present-day conditions, these considerations play a primordial role in assessing complaints going to the impairment of social welfare rights; and they undoubtedly provide the State with a wide margin of appreciation in rationalising their social-security systems (see paragraph 31 below).", "Nevertheless, the examination of proportionality of such measures cannot be dispensed with. 29. In addressing the proportionality of the measure, that is, in considering whether the interference imposed an excessive individual burden on the applicant, the Court will have regard to the particular context in which the issue arose, namely that of a social-security scheme. Such schemes are an expression of a society’s solidarity with its vulnerable members (see Béláné Nagy, cited above, § 116). An important consideration is whether the applicant’s right to derive benefits from the social-insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his pension rights (see Béláné Nagy, cited above, § 118).", "For the Court, a two-thirds reduction, as in the present case, undoubtedly falls into this latter category. 30. The Court notes that although the applicant – unlike Mrs Nagy – was not completely deprived of all entitlements, his income was nevertheless abruptly reduced to EUR 180 per month (see paragraph 11 above), which, as admitted by the Government themselves, was barely 60% of the minimum subsistence level relevant in the period in issue (see paragraph 20 above). This element is aggravated by the fact that the applicant apparently had no other significant income on which to subsist and that he belonged to a vulnerable group of disabled persons (see Béláné Nagy, cited above, § 123). 31.", "The Court thus considers that in the present case the application of the impugned legislation resulted in a situation in which a fair balance was not struck between the interests at stake – even if that legislation was aimed at protecting the public purse by rationalising the scheme of disability benefits, a matter of legitimate general interest in whose pursuit the State enjoys a wide margin of appreciation (see paragraph 28 above). Once again, it must be stressed that the applicant suffered the removal of two-thirds of his benefit, whereas there was no indication that he had failed to act in good faith at all times, to co-operate with the authorities or to make any relevant claims or representations (see Béláné Nagy, cited above, §§ 121, 125 and 126). 32. The Court thus considers that there was no reasonable relation of proportionality between the aim pursued and the restrictions applied to the applicant’s allowance in the period from 1 July 2012 to 31 December 2013. It therefore finds that, notwithstanding the State’s wide margin of appreciation in this field, the applicant had to bear, in the period at issue; an excessive individual burden.", "Even though the applicant later benefitted from a further legislative amendment, which resulted in an increase of his disability allowance, that measure only applied from 1 January 2014 onwards (see paragraph 13 above). 33. It follows that there has been a violation of his rights under Article 1 of Protocol No. 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 34. 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 35. The applicant claimed EUR 6,320 in respect of pecuniary damage, which corresponds to the accumulated difference between the previous benefit and the one prevailing in the period giving rise to the violation found. He also claimed EUR 30,000 in non-pecuniary damage.", "36. The Government found these claims to be excessive. 37. The Court cannot speculate on the amount of disability benefit which would have been disbursed to the applicant had the violation not occurred. It therefore awards him a lump sum of EUR 5,000 in respect of the pecuniary damage sustained (see Béláné Nagy, cited above, § 131).", "Moreover, it considers that he must have suffered some non-pecuniary damage on account of the distress suffered and awards him, on the basis of equity, EUR 5,000 under this head. B. Costs and expenses 38. The applicant also claimed EUR 13,400 plus VAT for the costs and expenses incurred before the Court. This amount corresponds to sixty-seven hours of legal work billable by his lawyer at an hourly rate of EUR 200 plus VAT.", "39. The Government contested this claim. 40. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 9,000 covering costs under all heads.", "C. Default interest 41. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s preliminary objection and dismisses it; 2. Declares the application admissible; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Marialena TsirliVincent A. De GaetanoRegistrar President" ]

[ "FIRST SECTION CASE OF RIAD AND IDIAB v. BELGIUM (Applications nos. 29787/03 and 29810/03) JUDGMENT STRASBOURG 24 January 2008 FINAL 24/04/2008 This judgment is final but it may be subject to editorial revision. In the case of Riad and Idiab v. Belgium, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Loukis Loucaides, President,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,Paul Martens, ad hoc judge,and Søren Nielsen, Section Registrar, Having deliberated in private on 30 November 2006 and on 3 January 2008, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in two applications (nos. 29787/03 and 29810/03) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by certain Belgian associations and also by two Palestinian nationals, Mr Mohamad Riad and Mr Abdelhadi Idiab (“the applicants”), on 6 August 2003.", "2. The applicants alleged, in particular, that the living conditions which they had experienced in the transit zone of Brussels National Airport, where they had been held between 30 January 2003 and 15 February 2003 and between 3 and 15 February 2003 respectively, had infringed Articles 3 and 8 of the Convention and that two decisions ordering their release had not been properly implemented, in violation of Article 5 of the Convention. 3. By a decision of 21 September 2006 the Chamber decided to join the applications (Rule 42 § 1 of the Rules of Court) and declared them partly admissible. 4.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 30 November 2006 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrC. Debrulle, Agent of the Belgian Government and Director General, Legislation and Fundamental Freedoms and Rights Directorate, Federal Justice Department, Agent,MsE. Derriks, lawyer of the Belgian Government,Counsel,MsV. Rolin, avocat, assistant to Ms Derriks,MsC.", "Gallant, Attaché, Human Rights Office, Legislation and Fundamental Freedoms and Rights Directorate, Federal Justice Department,MsN. Bracke, Attaché, Head of Department, Border Inspection Department, Aliens Office, Federal Department of the Interior,MsT. Michaux, Adviser/Head of Department, Appeals Department, Aliens Office, Federal Department of the Interior, Advisers; (b) for the applicantsMsS. Sarolea, avocat,MsM.-C. Warlop, avocat,Counsel. 5.", "The Court heard addresses by Ms Sarolea and Ms Derriks. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1980 and 1981 respectively. A.", "The applications for asylum and for residence and their outcome 1. The first applicant 7. The first applicant arrived in Belgium at Brussels National Airport on flight SN 211 from Freetown (Sierra Leone) on 27 December 2002, carrying a Lebanese travel document stating that he was a Palestinian refugee. He was refused entry to Belgium as he did not have the necessary visas. The carrier which had provided the flight was informed that, pursuant to section 74(4) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, it was responsible for paying the costs of his return to his country of origin.", "8. On the same date the first applicant requested recognition of his refugee status, maintaining that his life was in danger in Lebanon, and was issued with a document certifying that he had applied for asylum. 9. Also on the same date, 27 December 2002, a decision to keep the first applicant in a designated place at the border was taken on the basis of section 74/5(1)(2) of the Act of 15 December 1980. Pursuant to that decision, the first applicant was taken to Transit Centre no.", "127 on the premises of Brussels National Airport. 10. A decision refusing asylum was taken on 31 December 2002 by the Aliens Office and served on the first applicant on the same date. The first applicant lodged an appeal with the Office of the Commissioner General for Refugees and Stateless Persons. 11.", "On 21 January 2003 the Commissioner General's Office upheld the decision refusing asylum; it pointed out the inconsistencies between the various accounts given by the applicant in question and concluded that on the evidence he had no reason to fear that he was in personal danger in Lebanon. 12. An application for judicial review of the decision of 21 January 2003 of the Commissioner General's Office and an application to stay its execution were lodged with the Conseil d'Etat on 19 February 2003. At the hearing before the Court, the parties explained that those applications were declared inadmissible in 2005 on the ground that the first applicant was no longer on Belgian territory and the continued examination of his case was thus devoid of purpose. 2.", "The second applicant 13. This applicant arrived in Belgium at Brussels National Airport on a flight from Freetown on 24 December 2002 at 5.12 a.m. As he did not have a transit visa allowing him to travel onwards to London, steps were taken to refuse him entry to Belgian territory and the carrier which had provided the flight was requested to take him, or have him taken, back to the country of origin or to another State where he could be allowed entry. The second applicant was rerouted to Beirut, via Budapest. 14. When he underwent a check in the transit zone on the same date this applicant stated that he did not wish to go to Beirut and requested recognition of his refugee status, maintaining that his life was in danger in Lebanon.", "He was issued with a document certifying that he had applied for asylum. 15. Also on the same date, 24 December 2002, a decision to keep the second applicant in a designated place at the border was taken on the basis of section 74/5(1)(2) of the Act of 15 December 1980. Pursuant to that decision, the second applicant was taken to Transit Centre no. 127.", "16. A decision refusing the application for asylum was taken by the Aliens Office on 6 January 2003. That decision was served on the same date on the second applicant, who lodged an appeal with the Office of the Commissioner General for Refugees and Stateless Persons. 17. On 21 January 2003 the Commissioner General's Office upheld the decision refusing asylum, as it was not familiar with the Palestinian organisation to which the second applicant claimed to belong.", "An application for judicial review and an application for a stay of execution were also lodged with the Conseil d'Etat on 19 February 2003. Like the applications lodged by the first applicant, these applications were dismissed in 2005 as they had become devoid of purpose. B. Detention in Transit Centre no. 127 and in the closed centre in Bruges 18.", "The first applicant remained in Transit Centre no. 127 from 27 December 2002 pursuant to the decision to keep him in a designated place at the border (see above). The second applicant remained there, on the same basis, from 24 September 2002. 19. Following an attempted collective break-out from Transit Centre no.", "127 during the night of 21 to 22 January 2003, the two applicants and three of their compatriots were transferred on 22 January 2002 to the Closed Centre for Illegal Aliens in Bruges (the Government explained that this institution was, by a legal fiction, treated as a centre at the border). 20. In January 2003 their lawyer lodged an application for release on behalf of each of them before the chambre du conseil of the Brussels Court of First Instance, by registered letter posted on 14 January 2003. The chambre du conseil allowed that application by an order of 20 January 2003, being of the view that the grounds put forward by the administrative authorities to justify the deprivation of liberty were not sufficient. 21.", "On the same day on which that order was made, State Counsel's Office notified the Aliens Office, by means of a form, that it had decided to lodge an appeal, which it did on the following day. On account of that appeal, the applicants remained in the closed centre, and any procedures for their repatriation were suspended pending the judgment of the Indictment Division. 22. On 24 January 2003 the authorities arranged for both applicants to be booked on a flight to Freetown on 6 February 2003. 23.", "By a judgment of 30 January 2003 the Brussels Indictment Division upheld the order made on 20 January for the first applicant's release, being of the view that the detention order did not contain “sufficient reasons in concreto”. 24. Following that judgment, Principal State Counsel at the Brussels Court of Appeal ordered the first applicant's immediate release. As a result of that decision, the Aliens Office had him transferred to the transit zone at Brussels National Airport (see below). 25.", "On 3 February 2003 a similar judgment was delivered in respect of the second applicant. On the same date Principal State Counsel and the Aliens Office took decisions identical to those taken in respect of the first applicant, whom the first applicant rejoined in the transit zone at Brussels National Airport on 3 February 2003. C. The stay in the transit zone in Brussels National Airport 26. On 30 January 2003 the first applicant, as explained below (see paragraph 28), was placed in the transit zone in Brussels National Airport. He was taken there at 6.45 p.m., together with Ab., another Palestinian national who had arrived in Belgium on 25 December 2002 in the same circumstances as the first applicant.", "27. They were informed that they were being released, their luggage was returned to them and they were each given an envelope containing their personal possessions, with the exception of their passports, which remained in the possession of the federal police at the airport, and were allowed to make a telephone call to a person of their choice. They stated that they wished to telephone their lawyer. 28. On 1 February 2003 at 1.30 p.m. they went to the federal police border inspection post and declared that they had no money or food.", "They were told that they could go on a voluntary basis to the “INADS Centre” at the airport and remain there pending their removal. They were taken to that centre, where the first applicant signed a statement, after the content thereof had been translated for him, agreeing to remain voluntarily at the centre and to observe its rules. According to a document from the centre, the first applicant arrived there on 1 February 2003 and left on 3 February 2003; in fact, an unsuccessful attempt to remove the applicant to Freetown was made on 3 February 2003, but he refused to board the aeroplane. Following his refusal to board, he was taken back to the transit zone. 29.", "Also on 3 February 2003, the lawyer acting for the first applicant and Ab. wrote to the Minister for the Interior, claiming that her clients had suffered degrading treatment by having to spend three days in the transit zone without food or drink. She explained that a few hours after arriving in the “INADS Centre” they had simply been returned to the transit zone and told to fend for themselves in order to obtain food, drink and a return ticket. 30. On the same date, 3 February 2003, at 6.40 p.m. the first applicant and Ab.", "were joined in the transit zone by the second applicant (see paragraph 28 above). Upon being transferred there he was given the same explanations as the two others and stated that he was “no longer happy with that decision” and wished to contact his lawyer. He also stated that he had no money and had only a telephone card. He again asked where the “other men” were. 31.", "On 4 February 2003 the applicants' counsel applied under the extremely urgent procedure to the President of the Brussels Court of First Instance, who dismissed the application on 9 February 2003 on the ground that the applicants did not have a personal right of access to the territory, as such a right was not conferred either by the submission of an application for asylum or by the orders for their release. 32. In the meantime a fresh attempt to remove the three persons to Freetown had been made on 6 February 2003. A further attempt to remove two of them was made on 8 February 2003. The first applicant refused to board the plane but Ab.", "did board it. 33. On 9 February 2003 the applicants' counsel lodged an application to shorten the period of notice of a hearing, arguing that keeping her clients in the transit zone constituted an illegal act that infringed their right to liberty, a right confirmed by the decisions delivered in respect of their detention in the transit centre. She further maintained that keeping them in the transit zone constituted a violation of Articles 3 and 8 of the Convention. By an order of 10 February 2003 the President of the Brussels Court of First Instance granted leave to summon the Belgian State to appear at a hearing on 12 February 2003.", "34. On 11 February 2003 the applicants summoned the Belgian State, represented by the Minister for the Interior, to appear before the President of the Brussels Court of First Instance, sitting as the urgent applications judge, for the purpose of securing an order for the State to allow them to enter Belgian territory, together with a penalty of 1,000 euros (EUR) per hour from notification of the order in the event of failure to comply. The applicants submitted that by keeping them in a closed space, despite the fact that the chambre du conseil of the Indictment Division had ordered their release, the State was in breach of the domestic and international provisions guaranteeing the right of personal liberty. In addition, they were completely destitute, without lodging or resources and left to their own devices in the transit zone, where they had no proper facilities and for several days had had neither food nor drink, which constituted inhuman and degrading treatment. They further submitted that some members of the federal police had violently struck and beaten them inside the Muslim place of worship in the transit zone.", "35. On 12 February 2003 the authorities arranged for the applicants to be booked on a flight to Beirut on 15 February 2003. 36. In submissions filed with the President of the Court of First Instance, counsel for the State objected, in particular, that the applicants had not applied for judicial review of the decisions of the Commissioner General's Office or for a stay of their execution. 37.", "By an order of 14 February 2003 the President of the Brussels Court of First Instance ordered the State to allow the applicants to leave the transit zone freely and without restriction, with a penalty of EUR 1,000 per hour with effect from notification of the order in the event of failure to comply. The decision delivered in the context of application no. 29787/03 reads as follows: “It is common ground that the applicant is at present subject to a decision of 3 January 2003 to remove him from national territory, upheld on 21 January 2003. The time-limit for bringing an action for a stay of execution and for judicial review does not have suspensive effect; nor does the application for regularisation under section 9(3) of the Act of 15 December 1980 which the applicant submitted on 28 January 2003. As the applicant's administrative status is binding on the court, it must take note of the fact that the applicant is therefore not entitled to remain on Belgian territory.", "Nonetheless, the decision of the Indictment Division is also binding on the court and in the present case, that division ordered the applicant's immediate release. It is also common ground that the Indictment Division was aware of the applicant's administrative status and in particular of the decision of the CGRA and therefore ordered his release with full knowledge of the facts. It is not for this court to adjudicate on that status but, rather, on the way in which that decision to release the applicant is implemented by the Belgian State, all other things being equal. The defendant maintains that, in view of the fact that the applicant has not been authorised to enter national territory as such, it was correct to take the view that the applicant's release should be effected in the transit zone, since that zone is not an area where the law does not apply but is in fact part of the Belgian Kingdom for persons in transit in Belgium and those who have not yet been authorised to enter the national territory as such. The Court of Cassation has held that 'as regards the access, residence, establishment and removal of aliens, it does not follow from the legal distinction between the port area and the rest of the territory of the Kingdom that the transit zone is not part of the Kingdom and that the law referred to does not apply there' (Court of Cassation, 22 June 1999, Pas.", "1999, 957). The closed centres are in reality nothing more than extensions of the transit zones, antechambers to the territory of the Kingdom, the only difference being that, unlike the transit zone, they are designed to be capable of accommodating persons for a more or less long period in what are assumed to be decent conditions. While the defendant's reasoning can therefore be followed in so far as it considers that by being present in the transit zone the applicant was in fact on Belgian territory, that reasoning cannot be followed where it considers that such presence amounts to 'release'. It cannot be accepted that the legislature, by creating centres at the borders, specially equipped to accommodate persons who are being held pending leave to enter the Kingdom or pending deportation, and by providing that persons held in those centres have a right of appeal to the chambre du conseil, took the view that if their release was ordered by the chambre du conseil and then by the Indictment Division, those persons could be sent to the transit zone, which is wholly unequipped to receive them, since this would place them in an even more precarious and adverse situation. If release limited to the transit centre were to be accepted, that would amount to allowing the Belgian State unilaterally to block a court decision ordering release on the basis of a person's administrative status, when that administrative status had been taken into consideration by that court and must have constituted a ground of its decision ordering release.", "Since 21 January 2003 the parties have both known that the removal order is enforceable, since the applicant's appeal to the CGRA was rejected and no urgent application for a stay of its execution was made. Since then the applicant has shown no intention of complying voluntarily with the removal order. Nor has the Belgian State forcibly removed him since then. Since the State is now required to comply with the decision ordering the applicant's release, there are two possibilities: either the defendant prefers to wait until the applicant decides to leave voluntarily, but in that case, while awaiting his departure, the State must allow him to move freely within the territory (in observance of res judicata), or the defendant assumes its responsibilities and provides itself with the means to enforce the order for the applicant's return in order to ensure compliance with its own administrative decisions. In that regard, the Law allows the Belgian State to order the alien in question to reside in a specified place pending implementation of the order for his removal (section 73 of the Act of 15 December 1980).", "What is unacceptable and contrary to the rule of law in the present case is that the Belgian State should place the applicant in another closed place (the transit zone) in which the living conditions are inhuman and degrading, in the hope that the applicant will then decide to implement the removal order 'voluntarily'. In transferring the applicant from the closed centre at Melsbroek to the transit zone, the Belgian State committed an illegal act. On the basis of the file as it currently stands, the release ordered by the Indictment Division necessarily means that, until such time as he is removed, the applicant is free to leave the transit zone, without prejudice to the Ministry's right to order the applicant to reside in a specific place (section 73). That solution to a wholly contradictory situation is the only one possible if the procedure under section 71 of the Act of 15 December 1980 is not to be reduced to a farce. In the light of the foregoing, the application must be allowed in accordance with the operative part of the present order.” The decision delivered in connection with application no.", "29810/03 is based on the same reasoning. 38. The applicants' lawyer sent that decision by fax on 14 February 2003 to the Aliens Office, which cancelled the booking made for the flight on 15 February 2003. On 15 February 2003 the Office was instructed to allow the applicants to leave the transit zone, without restriction. 39.", "The orders of 14 February 2003 were served on the Belgian State, by bailiff, first on 17 February 2003 to the office of the Minister of Justice; the order made in favour of the first applicant was served for a second time, on 28 February 2003, on the federal police border inspection post at Brussels National Airport. 40. Both applicants left the transit zone on 15 February 2003, in the late morning; the precise time was not stated. 41. The parties differed as to the situation which the two applicants encountered in the transit zone.", "42. The applicants stated that the transit zone had no bedrooms and, a fortiori, no beds, and that they were housed in the mosque located there. They were taken in by the Muslim counsellor, who took them in again after the various attempts to remove them. They remained for several days without food or drink, receiving food only irregularly from the cleaning staff, the company running the airport, the Muslim counsellor or the lay counsellor at the airport. The two counsellors explained in their testimony that the applicants' situation was unbearable, mentioning that they had been abandoned or “deserted” by the authorities.", "The applicants were unable to wash themselves or to launder their clothes. They were often checked by the airport police; on several occasions they were placed in a cell and left there for several hours without food or drink, in an attempt to force them to agree to leave the country voluntarily, then taken back to the transit zone. They were also violently struck and beaten inside the mosque by certain members of the federal police. 43. The Government submitted that, following the criticisms in a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) in 1993, the situation in the transit zone at Brussels National Airport had been remedied by, inter alia, setting up the “INADS Centre” on the airport premises.", "The centre was able to take in, on a voluntary basis, persons staying in the transit zone and provide them with bed and board. In its 1997 report on its visit to Belgium, the CPT observed that the material conditions and the activities offered in the “INADS Centre” could generally be described as satisfactory for a stay of not more than a few days, with just one exception (the lack of provision for those staying in the centre to enjoy fresh air). In addition, persons in the transit zone awaiting a reservation on a flight for the purpose of their removal were able to receive meals via the control services. A federal police circular of 31 October 2003 confirmed that practice and reminded the various services of their obligations in that regard. It was apparent from that circular that the team dealing with the case of a particular alien was responsible for distributing meals to him or her and that upon arriving in the transit zone aliens were informed that they could go to the “arrivals” level three times a day to be given a meal.", "The team responsible ordered three meals per person per day at the “INADS Centre”. Although that procedure had been properly confirmed only by the circular of 31 October 2003, the fact nonetheless remained that the first applicant had been informed on 1 February 2003 that he could be housed and fed on a voluntary basis in the “INADS Centre”. D. The applicants' detention in the Merksplas closed centre 44. On 15 February 2003 at 11.30 a.m. the applicants, after leaving the transit zone, were subjected to an identity check by officials of the federal police responsible for border control. After finding that the applicants were not in possession of a valid residence permit, the police drew up an administrative report for each of them.", "The reports stated that the applicants were travelling together and that they spoke English in addition to their mother tongue. The police contacted the Aliens Office at 12.30 p.m. and were instructed to detain the applicants so that they could be served with an order to leave the territory together with a decision ordering their removal and a decision ordering their detention for that purpose. A decision to that effect was served on them on the same date, at an unspecified time, by an officer from the Aliens Office. Both applicants refused to sign. 45.", "The first applicant was informed of those measures and was told that, with a view to their implementation, he was being taken to the Merksplas centre for illegal aliens. He stated that he objected, on the advice of his counsel. During the journey to Merksplas this applicant complained that the handcuffs placed on him were too tight around his wrists. The journey was interrupted at 2.45 p.m. so that the handcuffs could be loosened. 46.", "The second applicant was informed of those measures and told that he would be taken to the centre for illegal aliens and he too stated that he objected, on the advice of his counsel, and resisted the police who were putting him in the van being used to transfer the two applicants. A few minutes after the van was closed, it was noted that, although he was handcuffed, the second applicant had intentionally injured himself by banging his head against the van window, which was protected by a grille. It was then decided to take him to Merksplas in a police vehicle and Velcro bands were placed round his arms and legs to prevent any mutilation. According to the report drawn up on that occasion, the applicant told the members of the escort that he would use his self-inflicted injuries as evidence to support a complaint against the police. Upon arriving at Merksplas he was examined by the doctor at the centre, who noted the presence of external injuries, namely a bruise and a small wound (“klein wondje”) on his forehead.", "47. On 19 February 2003 the lawyer representing the two applicants wrote to the Minister for the Interior to complain about his clients being placed in a closed centre in spite of the orders made on 14 February 2003. On the same date he had lodged an application with the Conseil d'Etat for judicial review of the decision of 21 January 2003 of the Commissioner General's Office and an application for a stay of its execution (see above). E. The applicants' removal 1. The first applicant 48.", "On 20 February 2003, measures were taken to remove the first applicant to Beirut, but the order for his repatriation was subsequently set aside. On 24 February 2003 the Aliens Office instructed the Border Inspection Department to make arrangements for his removal as soon as possible. His repatriation was rearranged for 8 March 2003. 49. On 8 March 2003 the first applicant left Merksplas and his personal effects, his luggage and the sums of EUR 45, 250 United States dollars (USD) and 1,000 Lebanese pounds which he had been carrying on his arrival were returned to him.", "He had previously been informed of the repatriation procedure that would be followed and of the measures of physical restraint that might be taken. Following a discussion, he stated that he no longer objected to being repatriated, but expressed the wish that certain conditions should be observed. He asked, in particular, that he should not be handcuffed and that he should carry his passport. He was told that those conditions could not be met, in view of the circumstances. 50.", "The applicant was repatriated on a flight to Beirut, via Moscow, escorted by three police officers. The first applicant was placed in fabric handcuffs before being taken on board. The handcuffs were removed after take-off. During the flights and while waiting in the transit zone at Moscow Airport he was given food and drink. The members of the escort reported no incident.", "2. The second applicant 51. On 21 February 2003, measures were taken to remove the second applicant to Beirut, but the order for his repatriation was subsequently set aside. 52. The second applicant was repatriated on 5 March 2003.", "Upon his departure from Merksplas, his personal effects, his luggage and a sum of EUR 150 were returned to him. According to the report drawn up in connection with his removal, he arrived at the airport at 4.45 p.m. He was searched and placed in a cell. At 8.35 p.m. the officials in charge of his repatriation questioned him in order to determine the extent of his cooperation with the removal order. During that interview, he indicated that he had realised that he had to return to Beirut.", "He allegedly added that he had not been happy with his situation for two months and that he had the impression that he had been a pawn in a game between his lawyer and the Ministry officials. He was allowed to telephone his family and contacted his sister, who was informed of the precise details of the flight and of the scheduled time of arrival. In order to prevent any attempt at resistance, the members of the escort decided, in view of the information in their possession and the circumstances of the transfer on 15 February 2003, to use measures of physical restraint. The applicant was wearing fabric handcuffs and had Velcro around his ankles when he boarded the flight to Beirut via Moscow. The boarding of the plane, the flight and the transit passed without incident.", "The applicant was released from his restraints as soon as the plane reached cruising altitude and he was given food, drink and cigarettes during the journey. Upon his arrival in Beirut his passport was returned to him. Members of his family were waiting for him there. The Belgian consul in Beirut was also present at the airport. ...", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 58. The applicants maintained that the fact that they had been placed in the transit zone following their respective arrests on 30 January 2003 and 3 February 2003 and then placed in Merksplas following the order of 14 February 2003 infringed Article 5 of the Convention, since those measures had been applied in breach of the court decisions ordering their release, which had not been executed with the diligence, promptness and good faith which that provision required in guaranteeing strict judicial supervision of any deprivation of liberty. The relevant provisions of Article 5 of the Convention read as follows: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” ... B. Merits 64. The applicants submitted that as regards their transfer to the transit zone, the Government were playing with words in regarding the transfer as a release.", "All the independent bodies which had visited the transit zone spoke of detention. Furthermore, what would be the point of judicial review of the lawfulness of an alien's detention “at the border” on his or her arrival on Belgian territory if the Aliens Office's practice of subsequently placing aliens in the transit zone were accepted? The orders of 14 February 2003 had answered that question by making clear that, in those circumstances, such judicial review would be reduced to a mockery; the orders used the word “farce”. In using such a stratagem, the State had not complied specifically and effectively with the decisions of the investigating courts but had embarked upon a parody which rendered nugatory the guarantee which it had put in place. The same applied to the circumstances leading to the applicants' detention at Merksplas.", "The applicants, who noted that their “review” was concomitant with their leaving the transit zone, observed that the use of ruses by the authorities had been firmly condemned by the Court (citing Čonka v. Belgium, no. 51564/99, §§ 42-44, ECHR 2002-I). They also observed that deprivation of liberty was merely an option in Belgian law and was not automatic, as the decisions adopted by the chambre du conseil, the Indictment Division and the President of the Brussels Court of First Instance showed. However, the Aliens Office's position consisted in making deprivation of liberty the rule for every alien not authorised to enter the territory, without any consideration as to whether the measure was appropriate or proportionate. 65.", "The technique of placing persons in the transit zone in order to circumvent decisions ordering their release had been denounced in an opinion of the Federal Ombudsman of 14 September 2004 and its consequences had been emphasised in the final observations of the United Nations Human Rights Committee of 30 July 2004 concerning Belgium. The applicants also noted the criticisms expressed in 2003 and 2004 by the European Union and the relevant conclusions in the Committee against Torture's Report of 25 May 2003 concerning Belgium, and referred to other recent texts issued by institutions of the Council of Europe – the Committee of Ministers, the Commissioner for Human Rights and the Parliamentary Assembly – which supported their analysis. In the report on the visit carried out in April 2005, the CPT had once again recommended that the Belgian authorities should end the impugned practice for good. In a judgment of 29 September 2005 the Brussels Court of Appeal, upholding an order of the chambre du conseil of the Brussels Court of First Instance of 28 January 2004, had held that transfer to the transit zone had not amounted to the implementation in good faith of a decision ordering the release of an alien held in the detention centre and had constituted an illegal act. 66.", "The Government observed that, following the judgments of 30 January and 3 February 2003, the applicants had been immediately released and had left the centre for illegal aliens in Bruges. However, as they had not been allowed to enter the territory owing to the decisions refusing them entry, which were still in force, they had been taken to the transit zone. That measure had implemented the above-mentioned decisions in accordance with domestic law and with the domestic courts' interpretation of it. The investigating courts had no jurisdiction to set aside or stay the execution of decisions refusing entry or ordering removal. Under section 72, subsection 2, of the Act of 15 December 1980, their role was limited to ascertaining whether administrative decisions depriving individuals of their liberty were in accordance with the law.", "In any event, the applicants' transfer to the transit zone could not be regarded as deprivation of liberty. The order of 14 February 2003 had departed from domestic and international case-law in considering that the transit zone was a “closed place”. The only restriction placed on the applicants' freedom was that they had been prohibited from entering Belgian territory. Furthermore, the applicants had been duly informed of their situation in English, a language which they knew, and their luggage, money and personal effects had been returned to them. They had been free to move and, in particular, to leave Belgian territory.", "The authorities had also given them the opportunity to do so by taking a flight on which seats had been booked in their names, but the applicants had refused these opportunities on three occasions and one occasion respectively. In those circumstances, the applicants must be considered to have been at the origin of the complaint which they had put forward and the State was therefore not responsible for the situation created (citing Mogoş v. Romania, no. 20420/02, 13 October 2005). 67. As regards the detention in Merksplas, the Government stated that, following the orders of 14 February 2003, the applicants had been authorised to leave the transit zone on 15 February 2003 and to have access to Belgian territory.", "However, they had not had leave to remain there. In the course of checks carried out on 15 February 2003 at 11.30 a.m. it had been found that they were in Belgian territory without being in possession of the necessary documents, and orders to leave the territory, together with a decision to expel them and a decision to deprive them of their liberty for that purpose, had been served on them, on the basis of section 7 of the Act of 15 December 1980. Noting that the words “in accordance with a procedure prescribed by law” essentially referred back to domestic law (citing Winterwerp v. the Netherlands, 24 October 1979, Series A no. 33; Steel and Others v. the United Kingdom, 23 September 1998, Reports of Judgments and Decisions 1998-VII; and Shamsa v. Poland, nos. 45355/99 and 45357/99, 27 November 2003), the Government explained that the deprivation of liberty in question was governed by the above-mentioned provision, which was extremely precise in that regard.", "The measures taken on 15 February 2003 to deprive the applicants of their liberty had satisfied the relevant criteria set by the Administrative Jurisdiction and Procedure Court (Cour d'arbitrage) and had been wholly necessary and proportionate. As the impugned decisions stated, various attempts had already been made to remove the applicants and on each occasion they had refused to comply. The competent authorities had therefore been entitled to take the view that there was little prospect that the applicants would voluntarily comply with the new decisions taken against them. The Government further observed that although the applicants had had the opportunity to appeal against these decisions to the chambre du conseil and had been informed of their right of appeal, they had failed to do so although their detention had begun on 15 February 2003 and ended on 8 March 2003. Nor could such a period of detention be considered excessive, according to the case-law (they cited Singh v. the Czech Republic, no.", "60538/00, 25 January 2005, and Chahal v. the United Kingdom, 15 November 1996, Reports 1996‑V), and their removal had taken place within the period of two months provided for in section 7 of the Act of 15 December 1980. 68. The Court must determine in the first place whether the placing of the applicants in the transit zone constituted a deprivation of liberty within the meaning of Article 5 of the Convention; the question of their stay in Merksplas does not give rise to any dispute in that regard. The Court observes that it has already found that holding aliens in an international zone involves a restriction upon liberty which is not in every respect comparable to that which obtains in detention centres. However, such confinement is acceptable only if it is accompanied by safeguards for the persons concerned and is not prolonged excessively.", "Otherwise, a mere restriction on liberty is turned into a deprivation of liberty (see Amuur v. France, 25 June 1996, § 43, Reports 1996‑III). However, the applicants in the present case were confined in the transit zone not upon their arrival in the country but more than one month later, after decisions had been given ordering their release. In addition, their confinement was ordered for an indefinite period and eventually lasted fifteen days and eleven days respectively. Furthermore, the mere fact that it was possible for the applicants to leave voluntarily cannot rule out an infringement of the right to liberty (ibid., § 48). The Court concludes that the applicants' confinement in the transit zone of the airport amounted to a de facto deprivation of liberty.", "69. The Court must therefore examine the compatibility of the deprivations of liberty found in the present case with paragraph 1 of Article 5 of the Convention. 70. The Court reiterates that in order for detention to be in keeping with Article 5 § 1 (f) of the Convention it is sufficient that an expulsion procedure is in progress and that the person concerned has been detained with a view to deportation; it is therefore unnecessary to consider whether the underlying decision to expel him could be justified under national law or Convention law or whether the detention could be considered reasonably necessary, for example to prevent his fleeing or committing an offence (see Chahal, cited above, § 112). The Court has, more specifically, held that it is normal that States, in the exercise of their “undeniable ... right to control aliens' entry into and residence in their territory” (see Amuur, cited above, § 41), have the right to detain would-be immigrants who – whether or not by applying for asylum – have sought permission to enter the territory.", "However, the detention of a person constitutes a major interference with individual freedom and must always be subject to rigorous scrutiny. The question also remains whether the detention was effected “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1. 71. The Court reiterates that in relation to whether a detention was “lawful”, including whether it was in accordance with “a procedure prescribed by law”, the Convention refers essentially to national law and establishes the need to apply its rules, but it also requires that any deprivation of liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Dougoz v. Greece, no. 40907/98, § 54, ECHR 2001-II; Markert-Davies v. France (dec.), no.", "43180/98, 29 June 1999; Amuur, cited above, § 50; Wassink v. the Netherlands, 27 September 1990, § 24, Series A no. 185; and Bozano v. France, 18 December 1986, § 54, Series A no. 111). 72. Article 5 § 1 thus primarily requires any arrest or detention to have a legal basis in domestic law (see Bozano, cited above).", "However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires any law to be sufficiently precise to avoid all risk of arbitrariness (see Nasrulloyev v. Russia, no. 656/06, § 71, 1 October 2007; Khudoyorov v. Russia, no.", "6847/02, § 125, ECHR 2005‑X; Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX; Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; and Amuur, cited above). The standard of “lawfulness” established in the Convention requires that all law be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Shamsa, cited above, § 40, and Steel and Others, cited above, § 54). 73.", "The Court must therefore ascertain whether the deprivation of liberty to which the applicants were subjected after the Indictment Division's judgments of 30 January and 3 February 2003 ordering their immediate release, and the orders subsequently made on 14 February 2003, came within the exception permitted by Article 5 § 1 (f) and, in particular, whether it satisfied the condition of “lawfulness”. 74. The Court observes at the outset that a situation in which the Aliens Office was able, on two occasions, to keep the applicants in detention despite the fact that their previous detention order had been set aside and their release ordered in clear terms by decisions which had become final in the absence of an appeal raises serious doubts in relation to the principle of lawfulness and the proper enforcement of judicial decisions. 75. As regards the placing and confinement of the applicants in the airport transit zone, the Court observes that in the present case the President of the Brussels Court of First Instance found that those measures were unlawful, stating that they were not permissible and were contrary to the rule of law.", "In the President's opinion, to accept that placing the persons concerned in that zone was equivalent to release would be tantamount to allowing the State “unilaterally to block a court decision ordering release on the basis of a person's administrative status, when that administrative status had been taken into consideration by that court and must have constituted a ground of its decision ordering release”. Admittedly, the Government appear to be suggesting that the two orders made on 14 February 2003 were not in accordance with domestic law and its interpretation by the domestic courts. If that was the case, it is difficult to understand why no appeal was lodged against those decisions, which described the Aliens Office's approach as an “illegal act”. The Court also observes that the same finding of illegality had already been made previously by the President of the Nivelles Court of First Instance (see paragraph 54 above). As the applicants submitted, such a finding was also subsequently made expressly by the Brussels Court of Appeal and the United Nations Human Rights Committee and, in substance, by the Federal Ombudsmen.", "76. The transfer to and confinement in the transit zone cannot therefore be regarded as the application in good faith of the immigration legislation. As the Court emphasised in the Bozano judgment (cited above), it may happen that a Contracting State's agents conduct themselves unlawfully in good faith; in such cases, a subsequent finding by the courts that there has been a failure to comply with domestic law may not necessarily retrospectively affect the validity, under domestic law, of any implementing measures taken in the meantime. Matters would be different if the authorities at the outset knowingly contravened the legislation in force and, in particular, if their original decision was an abuse of powers (ibid. ; see also Gebremedhin [Gaberamadhian] v. France (dec.), no.", "25389/05, § 56, 10 October 2006). In the present case it is apparent that the decision to place the applicants in the transit zone was manifestly contrary to the judgments of 30 January and 3 February 2003 and that the Aliens Office had knowingly exceeded its powers. 77. The Court also reiterates that according to its case-law, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006-XI, and also, mutatis mutandis, Aerts v. Belgium, 30 July 1998, § 46, Reports 1998‑V, and other authorities cited therein).", "The Court notes in that regard that it has been clear, since the first reports of the CPT – to which the Government referred in order to explain the creation of the “INADS Centre” – and the interlocutory order of the Brussels Court of First Instance of 25 June 2003 – referred to in the CPT's 1994 report (see paragraph 55 above) – that the transit zone is not an appropriate place of residence, with the exception of the “INADS Centre”, which appears suitable only for a stay not exceeding “a few days” (see paragraph 66 of the CPT's 1997 report). However, from 3 February 2003 the applicants were left to their own devices in the transit zone, without humanitarian or social support of any kind. The second applicant was placed in the transit zone, without any explanation of the existence, functioning and location of the “INADS Centre”, where he might have been given a more appropriate reception. The first applicant, who had initially been placed in the same situation, was given no information about the existence of the centre and was taken there only after he had described his situation to the officials at the border inspection post. Although the first applicant maintained that a few hours after being taken in at that centre he had been taken back to the transit zone and told to fend for himself, the Government stated that he had remained at the centre until 3 February 2003.", "Even if the Government's version is accepted, the fact remains that after the attempted removal on 3 February 2003 the first applicant was returned to the transit zone without anyone being concerned as to his subsequent fate. The Court will consider that situation in greater detail when it examines the complaint alleging a violation of Article 3 of the Convention. It is also necessary, in that regard, to take account of the fact that those detention measures were applied to foreign nationals who, in some cases, had committed no offences other than those connected with their residence. 78. The Court also observes that the Government failed to explain on what legal basis the applicants had been transferred to and confined in the transit zone.", "The Court considers that the fact of “detaining” a person in that zone for an indefinite and unforeseeable period without that detention being based on a specific legal provision or a valid decision of a court and with limited possibilities of judicial review on account of the difficulties of contact enabling practical legal assistance, is in itself contrary to the principle of legal certainty, which is implicit in the Convention and is one of the fundamental elements of a State governed by the rule of law (see, mutatis mutandis, Shamsa, cited above, § 58; Ječius, cited above, § 62; and Baranowski, cited above, §§ 54-57). 79. As regards the placing of the applicants in Merksplas, serious doubts as to the lawfulness of this third period of detention may in the Court's view be inferred from the domestic courts' finding that the second period of detention was unlawful. Furthermore, the orders of 14 February 2003 clearly indicated, relying on res judicata and the provisions of the Act of 15 December 1980, that until such time as the applicants were deported, the State must allow them to move freely within the territory, unless the Ministry decided to order them to reside in a designated place. Since the State clearly refused to enforce the repatriation decisions and hoped that the applicants would leave voluntarily, in spite of the previous setbacks, it continued to detain them on other grounds, without making use of the possibility offered by section 73 of the Act of 15 December 1980 to which the orders referred.", "Accordingly, their detention in Merksplas wholly failed to comply with the above-mentioned orders, against which no appeals were lodged. The Court has pointed out on many occasions that the implementation of final judicial decisions is essential in a State that accepts the rule of law (see Pedovič v. the Czech Republic, no. 27145/03, § 112, 18 July 2006). 80. In conclusion, the Court considers that the applicants' detention, in the form in which it continued after 3 February 2003, was not “lawful” within the meaning of Article 5 § 1 of the Convention.", "Accordingly, there has been a violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 81. The applicants alleged that they had suffered inhuman and degrading treatment, contrary to Article 3 of the Convention, at the hands of the Belgian authorities. They explained, firstly, that they had been left for more than ten days in the transit zone without any legal or social assistance, without any means of subsistence, without accommodation or washing or sleeping facilities, without any place to enjoy a private life, without access to means of communication, without being able to receive visits and without any possibility of having the conditions of their detention reviewed by external independent authorities.", "Secondly, they had been beaten several times and insulted. They relied on Article 3, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... B. Merits 88. The applicants submitted that in the transit zone they had been the victims of physical and psychological ill-treatment, remaining there without legal and social assistance, without any means of subsistence (food or drink), and without accommodation, toilets or anywhere to sleep. They had had nowhere to wash other than the public conveniences in the airport, no change of clothes, no toiletries and nowhere to enjoy a private life.", "Nor had they had access to communication facilities or any means of contacting the outside world, in particular their lawyer, a non-governmental organisation, an international organisation or a doctor. They had also been unable to receive visits or to have the conditions of their detention reviewed by external independent authorities. That situation contrasted with the situation at the closed centres, where a whole range of rights were afforded to aliens by a royal decree of 2 August 2002 which guaranteed them individual medical, psychological and social assistance. The physical conditions in the transit zone were used in order to bring psychological pressure to bear on those concerned with the aim of encouraging them to leave. The decisions delivered on 14 February 2003 and various reports had noted that in the transit zone, the living conditions were demeaning to the persons concerned and caused them to experience feelings of inferiority and anxiety capable of weakening and overcoming their physical and mental resistance, thus constituting inhuman and degrading treatment.", "89. The Government noted, first of all, that the time spent in the transit zone, a period limited to fifteen days in the first applicant's case and eleven days in the second applicant's case, was wholly attributable to the applicants. They had refused on several occasions to board the planes on which seats had been booked for them. Ab., on the other hand, who had arrived at the same time as the fist applicant, had left Belgium on 8 February 2003. By refusing to comply with the deportation orders upheld by the Commissioner General's Office, the applicants alone were responsible for the duration of their stay in the transit zone and for the alleged uncertainty connected with their situation (they cited Mogoş, cited above; Ghiban v. Germany (dec.), no.", "20420/02, 16 September 2004; and Matencio v. France, no. 58749/00, 15 January 2004). 90. The Government also maintained that the applicants had not been without resources in the transit zone, since their luggage and personal effects had been returned to them when they had left the Bruges Closed Centre. As regards the first applicant, a report by the Bruges Centre relating to the sums of money deposited by him stated that on leaving he had been given the sum of USD 250 and 1,000 Lebanese pounds.", "The second applicant had been given the sum of EUR 15.20, according to the Bruges Centre's report on the sums of money deposited. The movements of money mentioned in the various reports in that applicant's file showed that he had certainly had more means at his disposal: on arriving in Belgium he had stated that he had EUR 45; on entering the Bruges Centre he had deposited EUR 81.94 and when he left Belgian territory he had had EUR 150. Nor had the second applicant been alone in the transit zone, since he had joined the two other Palestinian nationals who had been transferred there on 30 January 2003 (the first applicant and Ab. ), about whom he had immediately enquired. That amount must be considered to be the minimum amount in their possession: residents were under no obligation to hand over all the money in their possession, although they were advised to do so in order to protect against theft.", "91. Furthermore, persons in the transit zone pending deportation could also receive meals via the control services, a practice confirmed by a circular of 31 October 2003. On 1 February 2003 the first applicant had been informed that he could be housed and fed on a voluntary basis at the “INADS Centre”, and he had stayed there from 1 to 3 February 2003, according to the centre's report (the Government also observed that Ab. had stayed at the “INADS Centre” from his arrival in the transit zone, at the same time as the first applicant, until he had voluntarily left the country on 8 February 2003). In the Government's view, the applicants were therefore responsible for the situation of which they complained and they could not take issue with the Belgian State for their own failure to make use of the opportunities offered to them.", "92. The Government further observed that, as regards the checks carried out by the police in the transit zone, the applicants had adduced no evidence on which it could be considered that those checks had been excessive, or indeed that the applicants themselves had been specifically targeted by those checks. The transit zone at Brussels National Airport was undeniably a high-risk zone, especially in view of the increased risk of attacks in recent years, which meant that regular checks were carried out there and that safeguards were put in place with respect to access to Belgian territory, in accordance with Belgium's commitments to the Schengen States and the member States of the European Union. There was no evidence that the applicants had been systematically targeted during those checks or that any violence had been used on such occasions. Nor had the first applicant lodged a complaint with the competent authorities or submitted any medical certificates confirming the blows or injuries allegedly inflicted on him.", "93. As regards the second applicant, the Government also contended that the letter of 19 February 2003 from the lawyer representing both applicants made no mention of the blows and injuries allegedly inflicted on him while he was being transferred on 15 February 2003. 94. The Court reiterates, first of all, that the Contracting States have, under a firmly established principle of international law and without prejudice to their commitments under international treaties, including the Convention, the right to control the entry, residence and expulsion of non-nationals. However, where they exercise their right to expel such persons, they must have regard to Article 3 of the Convention, which enshrines one of the fundamental values of any democratic society.", "95. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In ascertaining whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will consider whether the objet was to humiliate and debase the person concerned and whether, as far as its consequences are concerned, the measure did or did not affect his personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, 10 February 1983, § 22, Series A no.", "58). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001‑III, and Kalashnikov v. Russia, no. 47095/99, § 101, ECHR 2002-VI). The suffering and humiliation inflicted must in any event go beyond that inevitable element of suffering and humiliation connected with a given form of legitimate treatment or punishment.", "In this connection, the public nature of the punishment or treatment may be a relevant and aggravating factor (see, for example, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). However, it may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 120, ECHR 1999‑VI; and Erdoğan Yağız v. Turkey, no. 27473/02, § 37, 6 March 2007).", "96. The Court further reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). 97.", "In order to carry out this assessment, regard must be had to “the fact that the Convention is a 'living instrument which must be interpreted in the light of present-day conditions' [and] that the increasingly high standard being required in the area of the protection of human rights and fundamental freedoms correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies” (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 48, and, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999‑V). 98. The Court observes that the placing of the applicants in the transit zone constituted detention within the meaning of Article 5 of the Convention. The Court's task is limited to examining the personal situation of the applicants who were deprived of their liberty (see Aerts, cited above, §§ 34-37).", "In assessing whether such measures may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003-II; see also Dhoest v. Belgium, application no. 10448/83, Commission's report of 14 May 1987, Decisions and Reports 55, pp. 20-21, §§ 117-118). 99.", "Measures depriving persons of their liberty inevitably involve an element of suffering and humiliation. Although this is an unavoidable state of affairs which, in itself as such, does not infringe Article 3, that provision nevertheless requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for their human dignity, that the manner of their detention does not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in such a measure and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see, for example, Poltoratskiy v. Ukraine, no. 38812/97, § 132, ECHR 2003-V; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and Kudła, cited above, §§ 92-94); furthermore, the measures taken in connection with the detention must also be necessary to attain the legitimate aim pursued (see Frérot v. France, no. 70204/01, § 37, 12 June 2007, and Ramirez Sanchez v. France [GC], no.", "59450/00, § 119, ECHR 2006-IX). 100. In this connection, the Court observes that the applicants' deprivation of liberty was based on the sole fact that they were not in possession of a lawful residence permit. While States are entitled to detain would-be immigrants under their “undeniable ... right to control aliens' entry into and residence in their territory” (see Amuur, cited above, § 41), this right must be exercised in accordance with the provisions of the Convention (see Mahdid and Haddar v. Austria (dec.), no. 74762/01, 8 December 2005).", "The Court must have regard to the particular situation of these persons when reviewing the manner in which the detention order was implemented against the yardstick of the Convention provisions. At the same time, the Court would emphasise that Article 3 prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's circumstances or conduct (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). 101. The Court observes at the outset that in the present case the applicants were taken to the transit zone with a view to implementing judgments ordering their release delivered on 30 January and 3 February 2003, yet the Aliens Office, which was responsible for their transfer to the transit zone, showed no concern as to whether they would have adequate support there (see paragraph 77 above).", "The Court notes that the second applicant maintained, and this was not contested by the Government, that he was placed in the transit zone without being given any explanation about the existence, functioning and location of the “INADS Centre”, which might have been a more suitable place for him to stay for a certain time. The first applicant, who had initially been placed in the same situation, was given no information about the possibility of going to the “INADS Centre” and was taken there only after he reported his situation to the officials of the border inspection post. After having stayed there for several hours or several days, he again found himself back in the transit zone, at the latest after the attempt to deport him on 3 February 2003, without anyone being concerned about his subsequent fate. Nor did the letter which the first applicant's lawyer sent to the Minister of the Interior complaining about his client's situation provoke any reaction on the part of that authority. Lastly, while it is clear that the applicants were regularly checked while staying in the transit zone, it appears that the persons who carried out those checks never showed any concern about their situation.", "102. The Court does not subscribe to the Government's argument that the applicants had the opportunity to be accommodated on a voluntary basis at the “INADS Centre”. First of all, that possibility was never raised in the proceedings before the President of the Court of First Instance, who examined the applicants' situation by reference to Article 3. Nor was there any reference to it in the judgment of 29 September 2005 or in the reports and observations referred to in the preceding paragraph, although those documents were drawn up only after adversarial proceedings had taken place. The Court, moreover, is surprised at the attitude of the Aliens Office during the transfer to the transit zone.", "Although the Aliens Office was behind the transfer and although, according to the CPT's 1997 report, the “INADS Centre” is administered by that office, it did not place the applicants in that centre, or arrange for them to be placed there, but placed them in another part of the transit zone. However, it is apparent from the explanations provided by the parties that while that centre is within the transit zone of Brussels National Airport, it is situated, more specifically, on a lower level, at the end of “Pier B” of the new terminal. It therefore does not appear that it is easily accessible, especially for an alien newly arrived in the country and ill prepared to find his way around an international airport. The reports and observations referred to above show that these were not isolated acts on the part of the authority in question and give credence to the applicants' assertion that the Aliens Office's purpose in abandoning them in the transit zone was to compel them to leave the country voluntarily. 103.", "It is true that the first applicant stayed at the “INADS Centre” shortly after arriving in the transit zone, and remained there for several hours or several days, depending on the version. He therefore had the option, according to the Government, of returning there and taking the second applicant with him. The Court cannot accept that argument. Having taken it upon itself to deprive the applicants of their liberty, the State was under a duty to ensure that they were detained in conditions compatible with respect for human dignity. It could not merely expect the applicants themselves to take the initiative in approaching the centre in order to provide for their essential needs.", "The Court finds that that was not of the slightest concern to the authorities in the present case (see paragraph 101 above). The order of 30 November 2002, the judgment of 29 September 2005, the observations of the United Nations Human Rights Committee, the Federal Ombudsmen's annual report for 2004 and the CPT's 2005 report show that, far from being confined to the present case, that mode of conduct was reproduced on sufficient occasions to be characterised as a “practice” in the three last-mentioned documents. 104. The transit zone was not an appropriate place in which to detain the applicants. By its very nature it is a place designed to accommodate people for very short periods.", "With characteristics liable to give those detained there a feeling of solitude, with no access outside to take a walk or have physical exercise, without internal catering arrangements or contact with the outside world, the transit zone is wholly inappropriate to the needs of a stay of more than ten days. The Government accepted, moreover, that the recommendations made in that regard by the CPT had led to the establishment of the “INADS Centre” in order to make up for those shortcomings. An interlocutory order of the President of the Brussels Court of First Instance of 25 June 1993 had already found that a placement without any support in the transit zone, “taken as a whole, has the characteristics of degrading and inhuman treatment”. On that occasion the State had been ordered to put the persons placed in the transit zone “out of sight of the public” and to provide them with bedding, meals and sanitary facilities and to ensure that they received essential medical care. The conclusion that that situation constituted inhuman and degrading treatment was also reached in the order of the President of the Nivelles Court of First Instance of 30 November 2002, the orders made in the present case and the judgment of 29 September 2005.", "105. The Court also emphasises, as a subsidiary consideration, that even if it had been possible for the applicants to be taken in at the “INADS Centre”, the findings of the CPT's 1997 report, confirmed in the 2005 report, indicate that that centre is not appropriate for stays of more than a few days, whereas the applicants were detained for more than ten days in the transit zone, which they were able to leave only after the orders of 14 February 2003. In making those findings, the CPT noted, in particular, the limited opportunities for visits and the lack of facilities for the persons detained in the centre to have access to fresh air (see, mutatis mutandis, Poltoratskiy, cited above, § 146). 106. The Court considers it unacceptable that anyone might be detained in conditions in which there is a complete failure to take care of his or her essential needs.", "The fact that certain persons working in the transit zone provided for some of the applicants' needs does not in any way alter the wholly unacceptable situation which they had to endure. 107. It has not been established that there was a genuine intention to humiliate or debase the applicants. However, the absence of any such purpose cannot rule out a finding of a violation of Article 3 (see Peers, cited above). The Court considers that the conditions which the applicants were required to endure while being detained for more than ten days caused them considerable mental suffering, undermined their dignity and made them feel humiliated and debased.", "On the assumption that it is true, and in so far as the applicants were given the relevant information, the mere possibility that they could be given three meals a day cannot alter that finding. 108. In addition, the humiliation which the applicants felt was exacerbated by the fact that, after obtaining a decision ordering their release, they were deprived of their liberty in a different place. In the Court's view, the feelings of arbitrariness, inferiority and anguish which must have been associated with that state of affairs compounded the degree of humiliation occasioned by the obligation to live in a public place without any support. 109.", "In the light of that finding, the Court does not consider it necessary to examine the brutality and insults to which the applicants claim to have been subjected by the police while they were in the transit zone. The Court notes, moreover, that at the hearing on 30 November 2006 the applicants complained of the excessive humiliation caused to them by the attitude of the police during the overly frequent checks and the attempts to deport them. They did not mention any insults or physical violence, except in connection with one particular incident, in respect of which they were very imprecise. The applicants also made allegations in their application to the Court about the attitude of the police during their transfer to Merksplas and their removal on 5 and 8 March 2003. The Court finds, however, that they did not pursue those complaints either in their written observations or at the hearing and therefore sees no reason to examine them of its own motion.", "110. In the light of the foregoing, the Court considers that the fact that the applicants were detained for more than ten days in the location in issue amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention (see, mutatis mutandis, Kaja v. Greece, no. 32927/03, 27 July 2006, and Dougoz, cited above, § 48). 111. There has therefore been a violation of Article 3 of the Convention.", "... IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 114. 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 115. The applicants claimed to have sustained non-pecuniary damage, which they assessed at EUR 15,000 each.", "116. The Government contended that by refusing to comply with the enforceable decisions ordering them to leave the territory the applicants were responsible for the duration of the situation of which they complained under Articles 3 and 8 of the Convention. In the alternative, the Government maintained that the evaluation of the non-pecuniary damage should be based on that made in similar cases concerning similar facts, including the Amuur case (cited above), where the finding of a violation had been considered to constitute sufficient redress for non-pecuniary damage, and the Shamsa case (cited above), where a sum of only EUR 4,000 had been awarded under that head on account of events taking place over a longer period. 117. The Court considers that both applicants undoubtedly experienced distress which cannot be made good solely by its finding of a violation.", "Having regard to the nature of the violations found in the present case, and ruling on an equitable basis, the Court awards EUR 15,000 to each of the applicants by way of compensation for non-pecuniary damage. B. Costs and expenses 118. The applicants sought reimbursement of the costs and expenses incurred in the proceedings before the Court. In that connection they submitted a “fee note” in which the costs and expenses calculated on 29 October 2006 came to EUR 18,064 and the subsequent costs and expenses were assessed at EUR 4,700.", "119. The Government, who observed that the applicants had provided no documentary evidence to support their claims, maintained that sums relating to costs and expenses incurred by or on behalf of the various associations could not be taken into account. While those associations were initially among the applicants, an inadmissibility decision, on the ground of incompatibility ratione personae with the provisions of the Convention, was delivered in respect of them by the Court on 21 September 2006. The Government further submitted that the amount claimed in respect of the other costs and expenses was manifestly excessive. 120.", "According to the Court's settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court is of the view that, in certain respects, the claims submitted are not substantiated or are excessive. Making its assessment on an equitable basis, the Court awards EUR 15,000 for costs and expenses.", "That sum is to be reduced by the amount awarded by the Court by way of legal aid (EUR 1,625.40). C. Default interest 121. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY ... 2. Holds that there has been a violation of Article 5 of the Convention; 3.", "Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicants' stay in the transit zone; ... 5. Holds (a) that the respondent State is to pay, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros) to each of the applicants in respect of non-pecuniary damage and an aggregate sum of EUR 13,374.60 (thirteen thousand three hundred and seventy-four euros and sixty cents) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the claim for just satisfaction. Done in French, and notified in writing on 24 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenLoukis LoucaidesRegistrarPresident" ]

[ "FOURTH SECTION CASE OF IVAN v. SLOVAKIA (Application no. 49362/06) JUDGMENT STRASBOURG 14 December 2010 This judgment is final but it may be subject to editorial revision. In the case of Ivan v. Slovakia, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Lech Garlicki, President,Ján Šikuta,Vincent Anthony de Gaetano, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 23 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 49362/06) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Pavol Ivan (“the applicant”), on 6 December 2006.", "2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 3. On 7 February 2008 the President of the Fourth Section decided to give notice of the application to the Government. In accordance with Protocol No.", "14, the application was allocated to a Committee of three Judges. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and lives in Žabokreky. 5. The facts of the case, as submitted by the applicant, may be summarised as follows.", "6. On 9 June 1995 the applicant filed an action with the Martin District Court. He claimed the ownership and restitution of a motor car. 7. On 10 October 2003 the applicant modified his claim and asked for leave to join another person as a defendant.", "The District Court granted the request. 8. On 5 December 2003 the District Court remitted the case file to the Žilina Regional Court which decided on the defendant's appeal on 26 January 2004. 9. On 13 July 2004 an expert was asked to prepare an opinion.", "The expert opinion was submitted on 27 April 2006. 10. On 8 June 2006 the Constitutional Court found that the District Court had violated the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time. 11. The Constitutional Court held that the case was not particularly complex and that the applicant by his conduct had not contributed to the length of the proceedings.", "Substantial delays imputable to the District Court had occurred. The proceedings had lasted 11 years and no decision had been delivered on the merits. 12. The Constitutional Court awarded 80,000 Slovakian korunas (SKK) to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant's legal costs.", "13. On 12 October 2006 the District Court dismissed the applicant's claim. The applicant appealed. 14. On 31 October 2007 the Žilina Regional Court upheld the judgment.", "The decision became final on 27 February 2008. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 15. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 16. The Government submitted that the applicant could no longer claim to be a victim of a violation of his right to a hearing within a reasonable time since the amount of just satisfaction awarded to him by the Constitutional Court was adequate in the circumstances of the case.", "Moreover, the Constitutional Court's judgment had had preventive effect since four months after its finding the District Court had delivered a judgment. As to the course of the proceedings following the Constitutional Court's judgment, they submitted that the applicant was required to have recourse again to the Constitutional Court under Article 127 of the Constitution. In any event, there was no indication of any unreasonable delay. 17. The applicant disagreed.", "18. The Court observes that the applicant's status as a victim depends on whether the redress afforded to him at the domestic level was adequate and sufficient having regard to Article 41 of the Convention. This issue falls to be determined in the light of the principles established under the Court's case-law (see, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178‑213, ECHR 2006-V and Cocchiarella v. Italy [GC], no.", "64886/01, §§ 69‑98, ECHR 2006-V). 19. The Court notes that the applicant initiated the proceedings on 9 June 1995 by lodging a claim with the District Court. Except for one procedural issue which had been decided by the Regional Court the case had been dealt with by the District Court for almost eleven years. 20.", "The Constitutional Court awarded the applicant SKK 80,000 in respect of non-pecuniary damage. This amount is disproportionately low, having regard to what the Court generally awards in similar cases. 21. The redress obtained by the applicant at the domestic level was thus insufficient (see Scordino (no. 1), cited above, §§ 214-5).", "The applicant can accordingly still claim to be a “victim” within the meaning of Article 34 of a violation of his right under Article 6 § 1 of the Convention to a hearing within a reasonable time. 22. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "23. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 24. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).", "25. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 26. The Court notes that after the delivery of the Constitutional Court's judgment the proceedings before the District Court lasted one year and eight months at two levels of jurisdiction. Thus, the overall length of the proceedings under consideration was twelve years and eight months at two levels of jurisdictions.", "27. In the light of the above-mentioned considerations and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 28. There has accordingly been a breach of Article 6 § 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 29. 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 30. The applicant claimed EUR 5,000 in respect of non‑pecuniary damage. 31.", "The Government left the matter to the Court's discretion and requested that the award granted to the applicant at the domestic level be taken into account. 32. The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards award him EUR 3,700 under that head. B.", "Costs and expenses 33. The applicant did not submit a claim for costs and expenses. C. Default interest 34. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months EUR 3,700 (three thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 14 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Fatoş AracıLech Garlicki Deputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF PEJAKOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA (Applications nos. 337/04, 36022/04 and 45219/04) JUDGMENT STRASBOURG 18 December 2007 FINAL 18/03/2008 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pejaković and Others v. Bosnia and Herzegovina, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrS.", "Pavlovschi,MrL. Garlicki,MsL. Mijović,MrJ. Šikuta,MrsP. Hirvelä, judges,,and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 27 November 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos. 337/04, 36022/04 and 45219/04) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three citizens of Bosnia and Herzegovina, Mr Čedomir Pejaković, Mr Dragomir Kusić and Ms Ružica Pejić (“the applicants”), between 8 December 2003 and 16 November 2004. 2. The applicants, two of whom had been granted legal aid, were represented by Mr P. Radulović, Ms D. Glušac and Mr M. Pjević respectively (all three lawyers practise in Banja Luka).", "The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. 3. The applicants complain about non-enforcement of final and enforceable judgments in their favour. 4. On 14 December 2006 the President of the Fourth Section of the Court decided to give notice of the applications to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the applications at the same time as their admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1932, 1944 and 1942 respectively. Mr Pejaković and Mr Kusić live in Bosnia and Herzegovina, whereas Ms Pejić lives in Belgium.", "6. Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“SFRY”) the applicants deposited foreign currency in their bank accounts at the then Privredna banka Sarajevo Filijala Banja Luka (Mr Pejaković), Jugobanka Sarajevo Ekspozitura Gradiška (Mr Kusić) and Jugobanka Sarajevo Ekspozitura Brčko (Ms Pejić). In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...). 7.", "Following several unsuccessful attempts to withdraw their funds, the applicants instituted proceedings, seeking the recovery of their entire “old” foreign-currency savings and accrued interest. 8. By a decision of the Banja Luka Court of First Instance of 4 November 1999, the Banjalučka banka (the legal successor of the Privredna banka Sarajevo Filijala Banja Luka) was ordered to pay Mr Pejaković 18,952.59 German marks (DEM)[1], default interest on the above amount at the rate applicable in Germany to overnight deposits from 1 January 1998, legal costs in the amount of 250 convertible marks (BAM)[2] and default interest on the last-mentioned amount at the statutory rate from the date of the judgment. The judgment entered into force on 7 March 2001. On 6 June 2001 the Banja Luka Court of First Instance issued a writ of execution (rješenje o izvršenju).", "On 18 January 2002 the judgment debt became a public debt pursuant to section 20 of the Opening Balance Sheets Act 1998. 9. By a decision of the Gradiška Court of First Instance of 5 July 2000, the Kristal banka (the legal successor of the Jugobanka Sarajevo Ekspozitura Gradiška) was ordered to pay Mr Kusić 38,779.48 pounds sterling (GBP)[3], 5,758.18 US dollars (USD)[4] and 193,609.28 Australian dollars (AUD)[5], default interest on the above amounts at the annual rate of 9% from 29 January 1993 and legal costs in the amount of BAM 6,500[6]. The judgment entered into force on 8 September 2000. On 28 March 2001 the Gradiška Court of First Instance issued a writ of execution.", "On 17 April 2002 the judgment debt became a public debt pursuant to section 20 of the Opening Balance Sheets Act 1998. 10. By a decision of the Banja Luka Court of First Instance of 28 May 2001, the Kristal banka (the legal successor of the Jugobanka Sarajevo Ekspozitura Brčko) was ordered to pay Ms Pejić DEM 227,445.47[7], USD 3,964.17[8], 1,765.11 Dutch guilders[9] and 13,735.84 French francs[10], default interest on the above amounts at the rate applicable to overnight deposits from 1 January 1998 until 5 August 1999 and at the statutory rate thereafter, legal costs in the amount of BAM 4,360[11] and default interest on the last-mentioned amount at the statutory rate from the date of the judgment. The judgment entered into force on 28 July 2001. On 19 October 2001 the Banja Luka Court of First Instance issued a writ of execution.", "On 17 April 2002 the judgment debt became a public debt pursuant to section 20 of the Opening Balance Sheets Act 1998. 11. On 14 December 2001, 29 May 2002 and 17 February 2004 Mr Kusić converted a part of his savings (AUD 26,436.35[12], AUD 5,903.99[13] and GBP 1,536.40[14] respectively) into privatisation coupons pursuant to section 19 of the old Privatisation of Companies Act 1998. He subsequently sold those coupons on the secondary market. The price which he thereby obtained has not been indicated.", "12. On 24 January 2002 and 7 August 2002 Mr Pejaković converted a part of his savings (in total 810 euros) into privatisation coupons pursuant to section 19 of the old Privatisation of Companies Act 1998. When purchasing a State-owned apartment at a later date, the applicant paid a price reduced by the nominal value of those coupons pursuant to section 33 of the Privatisation of Apartments Act 2000. 13. On 15 April 2006 the Old Foreign-Currency Savings Act 2006 entered into force (“2006 Act”).", "Former section 27 of the 2006 Act, which was in force until 27 September 2007, effectively amended the awards made by the domestic courts: for example, interest accrued from 1 January 1992 was to be calculated afresh at an annual rate of 0.5% instead of the significantly higher interest rates awarded by the domestic courts. 14. On 5 July 2006 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (“Human Rights Commission”) dismissed the application brought by Mr Kusić (together with those brought by a number of other “old” foreign-currency savers) on the ground that, following the entry into force of the 2006 Act, the matter had been resolved. 15. It would appear that the judgments at issue have not yet been enforced.", "II. RELEVANT LAW AND PRACTICE 16. The relevant law and practice were outlined in the admissibility decision in Jeličić (cited above), Suljagić v. Bosnia and Herzegovina ((dec.), no. 27912/02, 20 June 2006) and the judgment in Jeličić v. Bosnia and Herzegovina (no. 41183/02, ECHR 2006‑...).", "17. Following the judgment in Jeličić (cited above), section 27 of the 2006 Act has been amended. It now reads as follows: “The courts shall send all their enforceable judgments ordering the release of “old” foreign-currency savings either to the Ministry of Finance of the Federation of Bosnia and Herzegovina, or the Ministry of Finance of the Republika Srpska or the Directorate for Finance of the Brčko District of Bosnia and Herzegovina.” THE LAW 18. The applicants complained about non-enforcement of final and enforceable judgments in their favour. Their complaints were examined by the Court under Article 6 of the Convention and Article 1 of Protocol No.", "1 to the Convention. Article 6, in so far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No. 1 to the Convention reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” I. ADMISSIBILITY 19.", "The Government submitted that the complaints of Mr Pejaković and Ms Pejić were inadmissible on non-exhaustion grounds, by reason of their failure to complain to the Constitutional Court of Bosnia and Herzegovina (“Constitutional Court”). They referred to the finding of the Court that an appeal to the Constitutional Court constituted, in principle, an effective remedy for raising a complaint about non-enforcement of judgments (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006 and Lukić v. Bosnia and Herzegovina (dec.), no. 34379/03, 9 January 2007). 20.", "The applicants contested the applicability of that principle to the judgments ordering the release of “old” foreign-currency savings on the ground of their being subject to a special legal regime. 21. The general principles concerning the rule of exhaustion of domestic remedies were outlined in Mirazović (cited above). 22. Given the Government's failure to provide a single example of a case in which an individual in a similar situation obtained redress from the Constitutional Court as well as the recent, unsuccessful attempt of Mr Kusić to obtain redress from the Human Rights Commission, which is institutionally close to the Constitutional Court, the Court agrees with the applicants that the remedy at issue offered no reasonable prospects of success in the special circumstances of the present case.", "23. Therefore, Mr Pejaković and Ms Pejić were not required to make use of that remedy and the Government's objection is thus dismissed. 24. The Court considers that the applicants' complaints raise questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No grounds for declaring them inadmissible have been established.", "The Court therefore declares these complaints admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 4 above), the Court will immediately consider the merits of these complaints. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 25.", "The applicants argued that the principle of the rule of law, which Bosnia and Herzegovina undertook to respect when it ratified the Convention, required that every single judgment be enforced. They further submitted that Bosnia and Herzegovina, together with other successor States, had inherited valuable assets from the former SFRY pursuant to the 2001 Agreement on Succession Issues: for example, Bosnia and Herzegovina received only from the Bank for International Settlements the equivalent of BAM 156,011,373.15 in 2002 (see the Earmarking of Certain Assets Act 2002; Zakon o namjeni i korištenju dijela imovine koju je Bosna i Hercegovina dobila po Sporazumu o pitanjima sukcesije; published in the Official Gazette of Bosnia and Herzegovina no. 11/02 of 30 May 2002). They concluded that the financial difficulties of Bosnia and Herzegovina were not as serious as the Government suggested. Indeed, they accused the Government of weak public-sector management and of being influenced by narrow private interests.", "26. The Government accepted that former section 27 of the 2006 Act restricted the applicants' access to court, maintaining, at the same time, that the restrictions pursued legitimate aims (namely, the macroeconomic stability and fiscal sustainability of Bosnia and Herzegovina) and that they were balanced. The Government then addressed the general situation of “old” foreign-currency savings. Lastly, they submitted that, following the Court's judgment in Jeličić (cited above), it had been realised that the number of judgments ordering the release of “old” foreign-currency savings could amount to 200 and not, as earlier believed, 10 to 20 judgments. The public debt arising from those judgments exceeded BAM 100,000,000, the Government claimed.", "27. The Court notes that the present case is nearly identical to Jeličić (cited above) in which the Court found a violation of Article 6 of the Convention as well as a violation of Article 1 of Protocol No. 1 to the Convention. It is true that section 27 of the 2006 Act has recently been amended and that this could eventually lead to the full enforcement of the judgments at issue. Nevertheless, it would appear that this has not yet happened.", "Furthermore, while there is no doubt that the public debt to which the Government referred constitutes an important burden for the State, the Government failed to substantiate their claim that the enforcement of the judgments ordering the release of “old” foreign-currency savings (such as those in the present case) would indeed endanger the macroeconomic stability and fiscal sustainability of Bosnia and Herzegovina. That being so, the Court does not see any reason to depart from its well-established case-law pursuant to which it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt (see Jeličić, cited above, § 39). The remaining arguments of the Government were either already rejected in Jeličić (cited above, §§ 41 and 44) or became moot following the amendment of section 27 of the 2006 Act. There has accordingly been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 29. In respect of pecuniary damage, the applicants sought the payment of the judgment debt.", "In addition, they claimed 4,000 euros (EUR), EUR 10,000 and EUR 10,000 by way of compensation for non-pecuniary damage. 30. The Government submitted that the amounts converted into privatisation coupons should be deducted as in Jeličić (cited above, § 53). They further considered the amounts claimed for non-pecuniary damage to be excessive. 31.", "The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicants as far as possible are put in the position in which they would have been had the requirements of Article 6 not been disregarded (see Jeličić, cited above, § 53). The Court finds that in the present case this principle applies as well, having regard to the violation found. It therefore considers that the Government should pay the awards made by the domestic courts. 32. In respect of Mr Pejaković this award consists of a principal debt (in the amount of EUR 9,691), default interest on the above amount at the rate and for the period specified by the domestic courts (EUR 1,602), legal costs (EUR 128) and default interest on the last-mentioned amount at the statutory rate for the period specified by the domestic courts (EUR 128).", "The amount of EUR 810 should be deducted because it has been invested in the privatisation process (see paragraph 12 above). Mr Pejaković should therefore receive EUR 10,739 in all under this head plus any tax that may be chargeable. 33. In respect of Mr Kusić this award consists of a principal debt (in the amount of EUR 189,748), default interest on the above amount at the rate and for the period specified by the domestic courts (EUR 246,745) and legal costs (EUR 3,323). As for the amount to be deducted, the Court notes that the applicant has converted a part of his savings (in total EUR 21,213) into privatisation coupons which he has then sold for an unknown price on the secondary market (see paragraph 11 above).", "Taking into consideration the going rate for such coupons at the relevant time (see the Human Rights Chamber's decision nos. CH/98/420, CH/00/5893, CH/02/9315 and CH/02/9852 of 4 September 2003, § 159), the presumption is that the applicant has received 60% of the nominal value of his privatisation coupons. Accordingly, the amount of EUR 12,728 should be deducted (see Jeličić, cited above, § 54). Mr Kusić should therefore receive EUR 427,088 in all under this head plus any tax that may be chargeable. 34.", "In respect of Ms Pejić this award consists of a principal debt (in the amount of EUR 123,798), default interest on the above amount at the rate and for the period specified by the domestic courts (EUR 130,753), legal costs (EUR 2,229) and default interest on the last-mentioned amount at the statutory rate for the period specified by the domestic courts (EUR 2,229). It would appear that the applicant has not converted any of her savings into privatisation coupons. Ms Pejić should therefore receive EUR 259,009 in all under this head plus any tax that may be chargeable. 35. As for non-pecuniary damage, the Court accepts that the applicants suffered distress, anxiety and frustration because of the State's failure to enforce judgments in their favour.", "Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards EUR 4,000 to each applicant under this head plus any tax that may be chargeable. B. Costs and expenses 36. Ms Pejić also claimed the equivalent of EUR 2,550 for the costs and expenses incurred before the Court. 37.", "The Government disagreed with the amount claimed by the applicant. 38. The Court notes that Ms Pejić was granted legal aid under the Court's legal-aid scheme in the amount of EUR 850. She failed to submit evidence, such as itemised bills and invoices, that any additional expenses had been actually incurred. Accordingly, the Court rejects her claim.", "C. Default interest 39. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Decides to join the applications; 2. Declares the applications admissible; 3.", "Holds that there has been a violation of Article 6 of the Convention; 4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 5. Holds (a) that the respondent State is to pay Mr Pejaković, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which should be converted into convertible marks at the rate applicable on the date of settlement: (i) EUR 10,739 (ten thousand seven hundred and thirty nine euros) in respect of pecuniary damage; (ii) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage; and (iii) any tax that may be chargeable on the above amounts; (b) that the respondent State is to pay Mr Kusić, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which should be converted into convertible marks at the rate applicable on the date of settlement: (i) EUR 427,088 (four hundred and twenty seven thousand and eighty eight euros) in respect of pecuniary damage; (ii) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage; and (iii) any tax that may be chargeable on the above amounts; (c) that the respondent State is to pay Ms Pejić, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which should be converted into convertible marks at the rate applicable on the date of settlement: (i) EUR 259,009 (two hundred and fifty nine thousand and nine euros) in respect of pecuniary damage; (ii) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage; and (iii) any tax that may be chargeable on the above amounts; (d) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants' claims for just satisfaction.", "Done in English, and notified in writing on 18 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident [1] 9,691 euros as of 4 November 1999 [2] 128 euros as of 4 November 1999 [3] 61,800 euros as of 5 July 2000 [4] 6,052 euros as of 5 July 2000 [5] 121,896 euros as of 5 July 2000 [6] 3,323 euros as of 5 July 2000 [7] 116,291 euros as of 28 May 2001 [8] 4,612 euros as of 28 May 2001 [9] 801 euros as of 28 May 2001 [10] 2,094 euros as of 28 May 2001 [11] 2,229 euros as of 28 May 2001 [12] 15,367 euros as of 14 December 2001 [13] 3,572 euros as of 29 May 2002 [14] 2,275 euros as of 17 February 2004" ]

[ "SECOND SECTION CASE OF DUBENKO v. UKRAINE (Application no. 74221/01) JUDGMENT STRASBOURG 11 January 2005 FINAL 06/06/2005 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dubenko v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrR.", "Türmen,MrV. Butkevych,MrM. Ugrekhelidze,MrsE. Fura-Sandström,MsD. Jočienė, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 30 November 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 74221/01) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Igor Samoylovich Dubenko (“the applicant”), on 25 May 2001. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Ms Valeria Lutkovska, succeeded by Ms Zoryana Bortnovska. 3.", "The applicant's complaints under Articles 6 § 1 of the Convention and Article 1 of Protocol No. 1 were communicated to the respondent Government on 9 May 2003. On the same date the Court decided that Article 29 § 3 of the Convention should be applied and the admissibility and merits of the complaints be considered together. 4. The applicant and the Government each filed observations on the merits (Rule 54A).", "THE FACTS 5. The applicant, Mr Igor Samoylovich Dubenko, is a Ukrainian national, who was born in 1949 and currently resides in Artemivsk, the Donetsk Region. I. THE CIRCUMSTANCES OF THE CASE 6. In March 2000 the applicant instituted proceedings in the Artemivsk City Court against the Komsomolets State Mine seeking to recover salary and compensation due to him.", "7. On 26 April 2000 the Artemivsk City Court awarded the applicant UAH 5,270.38[1] in compensation (UAH 2,946.98 in salary arrears and UAH 2,323.4 in compensation for the delayed settlement). 8. On 10 May 2000 a writ of execution was issued and sent to the Mykytivsky District Bailiffs' Service of Gorlivka (the “Bailiffs”) for the enforcement of the judgment. 9.", "The execution proceedings were initiated on 7 September 2000 by the Bailiffs, who instituted separate proceedings with regard to the payment of the salary arrears and the compensation for the delayed settlement. 10. On 15 September 2000 the writs of execution were presented to the Gorlivka branch of Bank Nadra where the mining company had its account. 11. On 24 April 2001 the Bailiffs informed the applicant that the judgment of 26 April 2000 could not be executed due to the mine's lack of funds.", "It also informed the applicant that he was no. 191 in the list of creditors who sought to recover their debts. 12. On 26 February 2002 the applicant informed the Court that the execution proceedings were still pending. 13.", "On 6 May 2003 the Bailiffs lodged an application with the Artemivsk City Court seeking to replace the debtor in the enforcement proceedings by the Artemvugillia State Company. On 20 June 2003 the court allowed this request. The Artemvugillia was ordered to pay the applicant UAH 2,946.98[2] in compensation. 14. On 24 June 2003 the Bailiffs discontinued the enforcement proceedings for the payment of UAH 2,946.98 and remitted the execution writs to the Gorlivka District Bailiffs' Service, which had the relevant jurisdiction.", "15. On 1 July 2003 the writ of execution was assigned to a bailiff who, on 2 July, instituted enforcement proceedings in the applicant's case. 16. On 3 July 2003 the Artemvugillia transferred the funds due to the applicant to the deposit accounts of the Mykytivsky District and Gorlivka District Departments of Justice which were enforcing the two writs in the applicant's favour. 17.", "On 4 July 2003 the sum UAH 2,323.4 for the delay in settlement was transferred to the applicant's bank account in accordance with payment order no. 195. 18. On 7 July 2003 the enforcement of this part of the judgment was discontinued in view of its execution. 19.", "On 9 July 2003 the remainder of the sum due to the applicant (UAH 2,946.98) was transferred to the applicant's bank account in accordance with payment order no. 219. 20. On 21 January 2004 the applicant informed the Court that he had received the full amount of the award. However, he complained that he had received no compensation for the further delays in enforcement.", "He also complained that he had to pay bank fees for the transfer made to him. II. RELEVANT DOMESTIC LAW A. Relevant legislation 21. Some of the relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no.", "67534/01). 22. The Law on the 2004 State Budget provided funds for the payment of compensation to the employees of State-owned mining enterprises. In particular, Article 28 of that Law provided a total sum of UAH 508,000[3] in compensation for unpaid benefits to the employees of such mines. In accordance with Article 34 of the Law, the State allocated a sum of UAH 5,122,161.9[4] to enforce its programme “Coal of Ukraine” (Vugillia Ukrayiny) for the reconstruction of the coal-mining industry.", "In particular, these funds were allocated to the payment of compensation (UAH 254,000[5]) ordered by court judgments to miners, and the salary debt (UAH 721,275.6[6]) of State-owned enterprises. 23. On 3 April 2003 Parliament decided that, during the first semester of 2003, all the funds which had accumulated on the current bank accounts of coal industry enterprises should be transferred to pay outstanding salary debts. B. Decrees of the President 24. The Decree of 15 December 1999 created the Ministry of Fuel and Energy (the “MFE”), following the abolition of the Ministry of the Coal-Minining Industry of Ukraine which had previously had responsibility for the management of State-owned coal-mining enterprises.", "25. On 14 April 2000 the President, by decree, approved the Statute of the MFE. 26. In accordance with the Decrees of 25 May and 6 July 2004, the Cabinet of Ministers was ordered to intensify its work related to the State's support of the coal-mining industry. In particular, in his Decree of 6 July 2004, the President ordered the MFE to facilitate the payment of compensation provided by the State for the salary debt of State-owned enterprises.", "C. Acts of the Cabinet of Ministers 27. In accordance with the Decree of the Cabinet of Ministers on “the management of State-owned property” of 15 December 1992, State-owned enterprises are prohibited from transferring property within their management to other enterprises or private persons. 28. In accordance with the Decree No. 397-p of the Cabinet of Ministers of 19 July 2002, the State was to pay the compensation awarded to miners as a result of damage caused by occupational disease.", "The MFE was allocated UAH 10,000,000 from the State budget for this purpose. 29. In accordance with the General Agreement between the Cabinet of Ministers, the All-Ukrainian Union of Employers and Entrepreneurs and the Professional Trade Unions of 19 April 2004, the State undertook to pay compensation for the salary debt owed to persons employed in the coal-mining industry before 1 November 2004. D. Acts of the Ministry of Fuel and Energy 30. By Order No.", "449 of 2 August 2004, the MFE reorganised the structure of the State Enterprise “Artemvugillia”. 31. Pursuant to Order No. 256 of the MFE, the Deputy Minister was made responsible for the control and management of State-owned coal-mining enterprises. A special Department within the MFE was created for this.", "32. Pursuant to Order No. 598 of 15 October 2002, the MFE had the right to approve changes in the statutes of enterprises within its jurisdiction and appoint the managers of those enterprises, as well as to instruct them on the performance of particular duties. THE LAW 33. The applicant complained of the failure of the State authorities to execute the judgment of 26 April 2000 given in his favour.", "He alleged an infringement of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which provide, in so far as relevant, as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS AS TO THE ADMISSIBILITY OF THE APPLICATION A. The applicant's victim status 34. The Government stressed that as the judgment of 26 April 2000 had been executed by the national authorities in full, the applicant could no longer be considered a victim of a violation of his rights under Article 6 § 1. They therefore proposed that the application be declared inadmissible or struck out of the Court's list of cases.", "35. The applicant disagreed. 36. The Court notes that this issue has already been discussed in a number of Court's judgments (see Voytenko v. Ukraine, no. 18966/02, judgment of 6 June 2004, § 35; Shmalko v. Ukraine, no.", "60750/00, judgment of 20 July 2004, § 34). In these cases the Court found that the applicant may still claim to be a victim of an alleged violation of the rights guaranteed by Article 6 § 1 in relation to the period during which the decision of which he complained remained unenforced (see, Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004). It therefore rejects the Government's objection as to the present applicant's lack of victim status. B.", "Objection as to the exhaustion of domestic remedies 37. The Government contended that the applicant has not exhausted domestic remedies as he did not lodge a claim with the domestic courts to challenge the inactivity of the State Bailiffs' Service or seek to expedite the enforcement proceedings in his case. 38. The applicant contested this submission. 39.", "The Court recalls its recent case-law on this issue (see the Voytenko and Shmalko judgments cited above, §§ 28-31 and 37-39). It finds no reason to distinguish the present application from these previous decisions. It concludes therefore that the applicant was absolved from pursuing the remedy invoked by the Government and has therefore complied with the requirements of Article 35 § 1 of the Convention. C. Conclusions as to the admissibility of the complaint under Article 6 § 1 of the Convention 40. The Court considers, in the light of the parties' submissions, that the applicant's complaint under Article 6 § 1 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "The Court concludes therefore that the complaint cannot be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. D. Admissibility of the applicant's complaint under Article 1 of Protocol No. 1 to the Convention 41. The Court refers to its reasoning under Article 6 § 1 of the Convention in relation to Articles 34 and 35 § 1 (paragraphs 36 and 39 above), which is equally pertinent to the applicant's claim under Article 1 of Protocol No.", "1 (see the aforementioned Voytenko judgement, § 50). Consequently, the Court also finds that this complaint cannot be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. II. AS TO THE ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 42.", "The applicant complains, under Article 6 § 1 of the Convention about the State authorities' lengthy failure to execute the judgment of 26 April 2000. 43. The Government repeated that there was no infringement of Article 6 § 1 of the Convention in view of the enforcement of the judgment. They considered that the time taken to enforce it was reasonable. Furthermore, the original non-enforcement of the judgment was caused by the difficult financial situation of the State.", "The State Bailiffs took all necessary steps under domestic legislation to enforce the judgment. 44. The Court recalls that the rights secured by Article 6 § 1 would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. The execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (Hornsby v. Greece, judgment of 19 March 1997, Reports of judgments and decisions 1997-II, p. 510, § 40). 45.", "The Court notes that the judgment of 26 April 2000 remained partially unenforced until 4 July 2003, when the full amount of the debt was transferred to the applicant's bank account, after the communication of the application to the respondent Government. However, the Court considers that the applicant should not have been prevented from benefiting from the decision given in his favour, which was of major importance to him, on the ground of the enterprise's alleged financial difficulties. 46. The Court considers therefore that by failing for three years and two and a half months to take the necessary measures to comply with the aforementioned judgment, the State authorities partly deprived the provisions of Article 6 § 1 of the Convention of their useful effect. It further considers that the Government have not advanced any valid justification for the delay in enforcement of the judgment from September 2000 until 6 May 2003 (the aforementioned Shmalko judgment, § 45) 47.", "There has accordingly been a violation of Article 6 § 1 of the Convention. III. AS TO THE ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 48. The applicant alleged that there had been an unjustified interference with his property rights, in breach of Article 1 of Protocol No.", "1. The substantial delay in the payment of the debt had deprived him of the actual possession of his property. 49. The Government acknowledged that the judgment debt constituted a possession within the meaning of Article 1 of Protocol No. 1.", "Nevertheless, they maintained that it had not been violated since the applicant's entitlement to the award was not disputed and he was not deprived of his property. They further noted that the delay in payment was due to the insufficient funds of the defendant company. 50. The Court recalls its case-law that the impossibility for an applicant to obtain the execution of a judgment in his or her favour constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (the aforementioned Voytenko judgment, § 53).", "51. The substantial delay of over three years and two and a half months to pay the judgment debt to the applicant is also an interference of this kind, for which the Government have not advanced any satisfactory explanation. The Court considers that the alleged lack of funds of a State-owned enterprise cannot justify such an omission. Accordingly, there has been a violation of Article 1 of Protocol No. 1.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage and costs and expenses 53. The applicant claimed pecuniary damage related to the amounts awarded to him by the judgment.", "He further alleged that his non-pecuniary damage amounted to UAH 52,700 (EUR 10,000). 54. The Government did not agree with the applicant's claims. They alleged that they were unsubstantiated. Furthermore, they maintained that the judgment given in the applicant's favour was enforced.", "55. The Court considers that the applicant's claims are excessive. Making its assessment on equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,520 in non-pecuniary damage and EUR 300 for costs and expenses. B. Default interest 56.", "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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,520 (one thousand five hundred and twenty euros) in respect of non-pecuniary damage and EUR 300 (three hundred euros) for costs and expenses, plus any tax that may be chargeable, these sums to be converted into the national currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant's claims for just satisfaction. Done in English, and notified in writing on 11 January 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident [1].", "EUR 1,048.34. [2]. EUR 504.80. [3]. EUR 78,600.6 [4].", "EUR 792,529. [5]. EUR 39,300.3. [6]. EUR 111,600." ]

[ "FIRST SECTION CASE OF ZOURNATZIDIS AND OTHERS v. GREECE (Application no. 23261/13) JUDGMENT This version was rectified on 18 October 2017 under Rule 81 of the Rules of Court STRASBOURG 20 April 2017 This judgment is final but it may be subject to editorial revision. In the case of Zournatzidis and Others v. Greece, The European Court of Human Rights (First Section), sitting as a Committee composed of: Ledi Bianku, President,Aleš Pejchal,Jovan Ilievski, judges,and Renata Degener, Deputy Section Registrar, Having deliberated in private on 28 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 23261/13) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by fifty-seven applicants of various nationalities whose names appear in the annexed list.", "They were represented by Mr K. Tsitselikis and Mr A. Spathis, lawyers practising in Thessaloniki. 2. The Greek Government (“the Government”) were represented by their Agent’s delegates, Ms K. Paraskevopoulou and Mr. I. Bakopoulos, Legal Counsellor and Legal Assistant respectively to the State Legal Council. The Albanian and Italian Governments did not make use of their right to intervene (Article 36 § 1 of the Convention).", "3. On 16 May 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were or are still detained in Ioannina Prison.", "5. Of the applicants, the fourth was released on 11 March 2013 and the eighth was transferred to Alikarnassos Prison on 6 December 2012. The fifteenth applicant was released on 1 March 2013 and the twenty-first on 14 March 2013. The twenty-ninth, forty-ninth, fifty-fourth and fifty-seventh applicants were released on 28 February 2013, the forty-third on 11 March 2013, and the fiftieth on 7 March 2013, while the fifty-sixth was transferred to Amfissa Prison on 14 December 2012. 6.", "Additionally, the ninth, twenty-fifth, thirty-second and thirty-fifth applicants were released on 30 May 2013, the tenth and twenty-sixth applicants on 16 May 2013, the twelfth and forty-fourth applicants on 4 April 2013, the thirteenth on 28 May 2013, the sixteenth on 9 May 2013, the eighteenth on 14 June 2013, the nineteenth, twenty-second, twenty‑fourth, forty-first and forty-fifth applicants on 9 April 2013 and the twentieth on 23 May 2013. The thirty-fourth and fifty-third applicants were released on 31 May 2013, the thirty-ninth and forty-eighth on 26 April 2013, the fortieth and fifty-second on 30 April 2013, the forty-sixth on 10 April 2013 and the fifty-first on 11 April 2013. A. The applicants’ submissions on the conditions of their detention in Ioannina Prison 7. The applicants alleged that the prison had held 235 prisoners but had only been designed for 85.", "There were four big cells measuring approximately 45 sq. m each, which had accommodated 32 detainees. There were also four smaller cells: cell no. 5 measured 16 sq. m and had accommodated 20 detainees, cell no.", "6 was 12 sq. m and had held 10 detainees, cell no. 7 had an area of 16 sq. m and had housed 20 detainees while cell no. 8, which used to be laundry room, measured 10 sq.", "m and had accommodated 9 detainees. A corridor of 34.5 sq. m had accommodated 40 detainees. 8. The cells had had no tables or chairs.", "Inmates had been confined to their cells for seventeen hours a day as recreational or educational activities had not been provided. They had had to take their meals inside their cells. 9. There was not enough separation between prisoners serving sentences and those in pre-trial detention. Additionally, healthy prisoners had been held together with sick prisoners, resulting in exposure to contagious diseases.", "Inmates had to wash and dry their clothes and underwear in the toilet facilities, which further spread contagious diseases. Medical care had been inadequate, particularly as regards psychological health. 10. On 13 and 25 February 2013 the applicants and other prisoners lodged a complaint with the prison authorities about their conditions of detention, but received no reply. B.", "The Government’s submissions on the conditions of detention in Ioannina Prison 11. The Government asserted that Ioannina Prison had four cells measuring 50 sq. m with two toilets each, one cell of 36 sq. m, two which measured 15 sq. m, one of 37.63 sq.", "m and two solitary confinement cells, each 8 sq. m in area. The dining room was 78 sq. m while the corridors had an area of 300 sq. m. At the time of the applicants’ application with the Court, the prison had held 210 to 230 detainees.", "12. Extensive repair works had been carried out in 2012 throughout the prison facilities and all areas had been repainted, stools had been placed in the cells, and a bookcase, television and table tennis table had been added to the dining-room, which served several purposes. Moreover, a fully equipped gym had been built for detainees. The detainees’ daily schedule also included free time in the prison yard from 3 p.m. until half an hour before sunset. Numerous cultural events had been regularly organised for the inmates’ entertainment.", "13. The cells had been regularly disinfected and cleaned on a daily basis. Ventilation and heating had been adequate in the cells and common areas. Appropriate standards of hygiene had been strictly observed and each new inmate was provided with clean clothing and blankets. All detainees had access to the prison infirmary and there were two general doctors, a dentist and three nurses.", "In emergencies, inmates were transferred to the Korydallos Prison Hospital or to an external hospital. II. RELEVANT DOMESTIC LAW AND PRACTICE 14. The relevant domestic law and practice is described in Kanakis v. Greece (no. 2) (no.", "40146/11, §§ 62-68, 12 December 2013), and Chatzivasiliadis v. Greece (dec.) (no. 51618/12, §§ 17-21, 26 November 2013). III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE (CPT) 15. Following its visit to Greece in April 2013, the CPT published a report dated 16 October 2014 (CPT/Inf (2014) 26), in which the following is stated: “105.", "Ioannina Prison, built in 1968, accommodated adult males who have been convicted to a sentence of less than five years or are on remand. With a capacity for 70 persons, it was holding 232 prisoners (130 on remand) at the time of the visit. In 2010, numbers had temporarily dropped to 190 inmates, but in general this facility has been holding between 200 and 250 prisoners, and on occasion even close to 300. The prison is formed by a single building, with an inner court yard that is used for outdoor exercise. The accommodation block consists of nine dormitories located on two floors.", "In 2012, the European Court of Human Rights found that the conditions in Ioannina Prison amounted to degrading treatment, due to severe overcrowding and the resulting lack of space. Already in 2009, the Greek Ombudsman had noted that the dormitories and cells were “absolutely insufficient” for the number of inmates and that the living space per inmate was “absolutely intolerable”. Regrettably, the delegation found that overcrowding remained a massive problem, affecting all parts of the prison. There are four large dormitories in Ioannina Prison, measuring some 50 m² which at the time of the visit were accommodating some 30 prisoners each. Five smaller dormitories, situated on the ground floor, measured between 15 m² and 32 m², and were accommodating between eight and 18 inmates.", "176 prisoners were accommodated inside these nine dormitories, while the remaining 56 prisoners had to sleep in the corridors, several of them in bunk beds (some two to a bed), others on mattresses placed on the floor. There was a complete absence of privacy for the inmates placed in the corridors. Notwithstanding the overcrowding, the large windows in the dormitories offered good access to natural light and sufficient ventilation, and artificial lighting was adequate. Further, the in-cell sanitary annexes (two showers, two toilets and two sinks) were fully partitioned. However, some of them were in a bad state of repair and had mould growing on the ceiling.", "In sum, the conditions of detention at Ioannina Prison remained very much the same as described by the European Court of Human Rights in its judgment of Samaras and others.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 16. The applicants complained that their conditions of detention in Ioannina Prison had violated their right not to be subjected to inhuman or degrading treatment, as provided in 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 authenticity of the application 17. The Government contended that the fifteenth applicant had failed to provide an appropriate power of attorney for his representative as the one submitted had not been dated.", "In addition, the eighth and fifty-sixth applicants had signed powers of attorney for their representative following their release from Ioannina Prison. That meant that they had not properly authorised their representative to lodge an application in relation to facts which had occurred prior to the authorisation. 18. The fifteenth applicant stated that the power of attorney had been signed on 21 February 2013 and that, in any event, the lack of a date on the form could not make the authorisation invalid. The eighth and fifty-sixth applicants argued that they had signed the relevant forms while they had still been detained and that, in any case, there was no requirement under the Convention to have an authority form signed while the violation was taking place.", "19. The Court observes at the outset that the respondent Government did not at any time argue that the application had been lodged without the applicants’ consent, that the applicants wished to withdraw their complaints or had lost interest in pursuing them. 20. The Court has previously found that it is essential for representatives to demonstrate that they have received specific and explicit instructions, within the meaning of Article 34 of the Convention, from alleged victims on whose behalf they purport to act (see Safaii v. Austria, no. 44689/09, § 32, 7 May 2014).", "21. The Court notes as regards the fifteenth applicant that it received an undated, signed power of attorney together with a duly signed application form. In the absence of any indication that the application was lodged without the fifteenth applicant’s consent and agreement or that the applicant did not intend to lodge a complaint, the Court dismisses the Government’s objection. 22. As regards the eighth and fifty-sixth applicants, the Court notes that there is no requirement under the Convention that a power of attorney be granted while the alleged breach of the Convention is taking place.", "Accordingly, the Court finds that there is no doubt that the application discloses a genuine and valid exercise of the applicants’ right of individual petition under Article 34 of the Convention and that the Court is competent to examine it (see, to that effect, Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005‑VII (extracts)). 23. The Court finds therefore that the application has been validly submitted on behalf of the eighth, fifteenth and fifty-sixth applicants and dismisses the Government’s first preliminary objection.", "2. Non-exhaustion of domestic remedies (a) The parties’ submissions 24. The Government asked the Court to reject the application on the grounds of non-exhaustion of domestic remedies. They argued that the applicants had failed to lodge a complaint with the Court for the Execution of Sentences (Δικαστήριο Εκτέλεσης Ποινών), pursuant to Article 6 of the Penal Code (Law No. 2776/1999), within a month of their complaint to the Prison Board on 13 and 25 February 2013.", "They further maintained that the applicants could have requested a transfer to another prison under Articles 72 and 76 of the Penal Code. 25. The Government contended that applicants who had already been released when they had lodged their application with the Court or who had been released following their application but prior to its examination had had at their disposal the remedy under section 105 of the Introductory Law to the Civil Code, in conjunction with the Penal Code and Article 3 of the Convention. They also referred to the provisions of Presidential Decrees nos. 141/1991 and 254/2004, arguing that they could have been relied on before the national courts in conjunction with section 105 of the Introductory Law to the Civil Code.", "In the Government’s view, the above-mentioned domestic remedy was capable of affording those applicants adequate redress in the form of monetary compensation for any damage caused to them. 26. The applicants argued that the aforementioned domestic remedies were not effective and cited the Court’s judgements in Nisiotis v. Greece (no. 34704/08, § 29, 10 February 2011), and Mathloom v. Greece (no. 48883/07, § 49, 24 April 2012) in that regard.", "(b) The Court’s assessment 27. Regarding the general principles concerning the application of the rule of exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, the Court refers to its relevant case-law (see, in particular, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996‑IV, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014). In addition, the issue as to whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts), and Koutalidis v. Greece, no.", "18785/13, § 61, 27 November 2014). 28. The Court reiterates that in cases where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012). 29.", "As regards the exhaustion of domestic remedies, the situation of a person who was detained under circumstances which he or she deemed contrary to Article 3 of the Convention and who apprised the Court after his or her release is different from the situation of an individual who is still in detention under the circumstances of which he or she complains (see Koutalidis, cited above, § 61). In particular as regards Greece, an action under section 105 of the Introductory Law to the Civil Code constitutes a purely compensatory remedy which allows the person concerned to seek and obtain redress for his or her conditions of detention in prison following release. However, that remedy does not provide a way to improve a person’s conditions of detention and thus lacks the preventive element referred to in the judgment in Ananyev and Others (see Papadakis and Others v. Greece, no. 34083/13, § 50, 25 February 2016). 30.", "The Court also notes that in A.F. v. Greece (no. 53709/11, §§ 59-60, 13 June 2013), it considered it appropriate to examine whether the provisions of a law or regulation which might be relied upon for the purpose of an action under section 105 of the Introductory Law to the Civil Code were drafted in sufficient detail and guaranteed “justiciable” rights (ibid., § 60). (i) The fourth, eighth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth, fifty-sixth and fifty-seventh applicants 31. Turning to the present case, the Court observes that the fourth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth and fifty-seventh applicants were released on various dates prior to lodging their application with the Court on 30 March 2013 (see paragraph 5 above).", "32. It also observes that the eighth and fifty-sixth applicants were transferred on December 2012 to other prison facilities, about which no information has been submitted to the Court to allow it to consider the two periods of detention as a “continuing situation” within the meaning of the Court’s case-law (see Ananyev and Others, cited above, § 78). 33. It follows that when they lodged their application with the Court on 30 March 2013 the fourth, eighth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth, fifty-sixth and fifty-seventh applicants had left Ioannina Prison and were no longer detained under the conditions of which they complained to the Court. Hence, by lodging their application with the Court the aforementioned applicants did not seek to put an end to an ongoing violation of their right not to be subjected to inhuman or degrading treatment in Ioannina Prison, but to obtain a subsequent ruling on an alleged past violation of Article 3 on account of the conditions of their detention in that prison and, if appropriate, to receive just satisfaction for non-pecuniary damage.", "34. The Court also notes that the applicants were incarcerated in Ioannina Prison and were thus subject to the provisions of the Penal Code. The applicants’ principal complaints before the Court concern overcrowding and sanitary conditions. In the Court’s view, Articles 21, 25 and 26 of the Penal Code guarantee justiciable rights which can be invoked before the national courts (see Chatzivasiliadis, cited above, § 34). An action under section 105 of the Introductory Law to the Civil Code, in conjunction with the above-mentioned Articles of the Penal Code and Article 3 of the Convention, therefore constituted a domestic remedy which should have been used by the above-mentioned applicants.", "35. It follows that pursuant to Article 35 §§ 1 and 4 of the Convention the application should be rejected on the grounds of non-exhaustion of domestic remedies as far as the fourth, eighth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth, fifty-sixth and fifty-seventh applicants are concerned. (ii) The ninth, tenth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-fifth, twenty-sixth, thirty-second, thirty-fourth, thirty-fifth, thirty-ninth, fortieth, forty-first, forty-fourth, forty-fifth, forty-sixth, forty-eighth, fifty-first, fifty-second and fifty-third applicants 36. The Court notes that the ninth, tenth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-fifth, twenty-sixth, thirty-second, thirty-fourth, thirty-fifth, thirty-ninth, fortieth, forty-first, forty-fourth, forty-fifth, forty-sixth, forty-eighth, fifty-first, fifty-second and fifty-third applicants were released on various dates in April, May and June 2013 (see paragraph 6 above). When they lodged their application with the Court on 30 March 2013 the above-mentioned applicants were therefore still detained in Ioannina Prison, and the remedy under section 105 of the Introductory Law to the Civil Code would not have been effective for them (see Alexopoulos and Others v. Greece, no.", "41804/13, § 27, 6 October 2016). 37. It follows that the Government’s objection as to inadmissibility due to non-exhaustion of domestic remedies should be rejected as far as the ninth, tenth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-fifth, twenty-sixth, thirty-second, thirty-fourth, thirty-fifth, thirty-ninth, fortieth, forty-first, forty-fourth, forty-fifth, forty-sixth, forty-eighth, fifty-first, fifty-second and fifty-third applicants are concerned. (iii) The remaining applicants 38. The Court has ruled in some cases regarding conditions of detention that applicants had not exhausted domestic remedies owing to a failure to make use of the provisions of Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code (Vaden v. Greece, no.", "35115/03, §§30-33, 29 March 2007, and Tsivis v. Greece, no. 11553/05, §§ 18-20, 6 December 2007). In those cases, the applicants complained of particular circumstances which had affected them personally as individuals, and to which the prison authorities could put an end by taking the appropriate measures. On the other hand, the Court has on many occasions ruled that when applicants allege that they have been personally affected by the general conditions prevailing in a prison, the remedies provided for by Article 572 of the Code of Criminal Procedure and Article 6 of the Penal Code are not effective (see, among other authorities, Papakonstantinou v. Greece, no. 50765/11, § 51, 13 November 2014).", "39. As the rest of the applicants fall into the latter category, the Court sees no reason to depart from its previous case-law in the instant case. 40. In view of the foregoing, the Government’s objection as to non‑exhaustion of domestic remedies should be dismissed. 41.", "The Court notes that the rest of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 42. The applicants complained of the conditions of their detention, mainly drawing the Court’s attention to the problem of overcrowding in Ioannina Prison.", "They referred, inter alia, to the Court’s judgments in Nisiotis v. Greece (no. 34704/08, 10 February 2011); Taggatidis and Others v. Greece (no. 2889/09, 11 October 2011); Samaras and Others v. Greece (no. 11463/09, 28 February 2012); and Tzamalis and Others v. Greece (no. 15894/09, 4 December 2012) which concerned the conditions of detention in the same prison, and maintained that nothing had changed in the meantime.", "43. Referring to their own description, the Government argued that the conditions of the applicants’ detention had been adequate. 1. General principles 44. The applicable general principles are set out in Muršić v. Croatia ([GC], no.", "7334/13, §§ 96-141, 20 October 2016). 2. Application of the above general principles to the present case 45. Turning to the circumstances of the present case, the Court notes that the parties provided conflicting descriptions of the conditions of the applicants’ detention in Ioannina Prison, especially as regards the provision of medical care and about hygiene. However, there is no need for the Court to establish the veracity of each and every allegation because it finds a violation of Article 3 on the basis of the facts presented to it which the respondent Government have failed to refute.", "46. In that connection, the Court notes that the Government submitted that the overall surface area of the cells was 320 sq. m, including the sanitary facilities, and that at the time the applicants were detained the total number of inmates in Ioannina Prison ranged from 210 to 230 (see paragraphs 11-13 above for the Government’s submissions). The Court further notes that the overall area of the common areas, such as the dining room and corridors, cannot be taken into account when calculating the minimum personal space allocated to detainees (see, mutatis mutandis, Muršić, cited above, § 114). It follows that the inmates in this case had approximately 1.5 sq.", "m or less of personal space, a conclusion which is further supported by the CPT’s report (see paragraph 15 above). 47. The Court takes note of the Government’s assertion that renovation works in 2012 resulted in improvements in the facilities. However, it finds that such severe overcrowding cannot be compensated for only by repairs or improvements. 48.", "In view of those findings and the relevant principles set out in its case-law, the Court finds that a strong presumption of a violation of Article 3 arises in the case at issue (see Ananyev, cited above, § 148). 49. Turning to whether there were factors capable of rebutting the strong presumption of a violation of Article 3 (see Muršić, cited above, §§ 129‑135), the Court notes that the applicants submitted that overcrowding was persistent throughout their detention, which lasted several months or years. In view of the parties’ submissions and the CPT’s report, and in the absence of any convincing information to the contrary from the Government, the Court accepts the applicants’ argument that Ioannina Prison was filled beyond its actual capacity during their time in detention, to the point that there was a flagrant lack of personal space. It is clear that experiencing such a lack of space cannot be seen as short, occasional and minor within the meaning of the Court’s case-law (see Muršić, cited above, § 130).", "50. Those circumstances are sufficient for the Court to conclude that the strong presumption of a violation of Article 3 has not been rebutted. The above finding renders it unnecessary for the Court to consider separately the rest of the applicants’ allegations regarding their conditions of detention. 51. Accordingly, there has been a violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 52. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 53. The applicants claimed sums ranging from 5,000 to 30,000 euros (EUR) in respect of non-pecuniary damage, depending on the length of their detention.", "Relying on Stoica v. Romania (no. 42722/02, 4 March 2008); Galotskin v. Greece (no. 2945/07, 14 January 2010); and Taggatidis and Others, cited above), the applicants requested that the sums awarded to them be paid into a bank account indicated by their representatives, owing to the number of applicants and the complexity of the logistical issues involved. 54. The Government contested those claims.", "They argued that the sums sought by the applicants were excessive. In the Government’s view, the Court should not only take into account the length of an applicant’s detention in the determination of compensation, but also improvements that have taken place in prison facilities in the meantime. In any event, if the Court wished to award a sum of money to the applicants, it should not exceed EUR 1,000. The Government also contested the need for any sums awarded to be paid into a single bank account to be indicated by the applicants’ representatives. 55.", "The Court finds that the applicants must have experienced suffering and frustration as a result of the breaches of their rights under Article 3. Ruling in equity, as required under Article 41 of the Convention, it awards the twelfth, thirteenth, sixteenth, nineteenth, twenty-second, twenty-fourth, twenty-fifth, thirty-fourth, forty-fifth and fifty-third applicants EUR 5,000 each; the first, third, fifth to seventh, ninth to eleventh, fourteenth, seventeenth, eighteenth, twentieth, twenty-third, twenty-sixth to twenty-eighth, thirtieth to thirty-third, thirty-fifth, thirty-sixth, thirty-ninth to forty-second, forty-fourth, forty-sixth to forty-eighth, fifty-first, fifty-second and fifty-fifth applicants EUR 6,500 each; the second and thirty-seventh applicants EUR 6,800 each; and the thirty-eighth applicant EUR 9,500, plus any tax that may be chargeable on those amounts. The amounts are to be paid individually to the applicants. B. Costs and expenses 56.", "The applicants also claimed EUR 2,500 for costs and expenses incurred before the Court, indicating they had concluded a legal services agreement with their representatives. They asked for this sum to be paid directly into the bank account indicated by their representatives. 57. The Government submitted that only claims supported by documentary evidence should be reimbursed and asked for the applicants’ claim for costs to be rejected. 58.", "The Court notes that the applicants did not submit a copy of their legal services agreement with their representatives. Accordingly, it dismisses their claim. C. Default interest 59. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application inadmissible in respect of the fourth, eighth, fifteenth, twenty-first, twenty-ninth, forty-third, forty-ninth, fiftieth, fifty-fourth, fifty-sixth and fifty-seventh applicants and the remainder of the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds (a) that the respondent State is within three months to pay to the applicants individually the following amounts: to the twelfth, thirteenth, sixteenth, nineteenth, twenty-second, twenty-fourth, twenty-fifth, thirty-fourth, forty-fifth and fifty-third applicants EUR 5,000 (five thousand euros) each; to the first, third, fifth to seventh, ninth to eleventh, fourteenth, seventeenth, eighteenth, twentieth, twenty-third, twenty-sixth to twenty-eighth, thirtieth to thirty-third, thirty-fifth, thirty-sixth, thirty-ninth to forty-second, forty-fourth, forty-sixth to forty-eighth, fifty-first, fifty-second and fifty-fifth applicants EUR 6,500 (six thousand five hundred euros) each; to the second and thirty-seventh applicants EUR 6,800 each (six thousand eight hundred euros); and to the thirty-eighth applicant EUR 9,500 (nine thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 20 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Renata DegenerLedi BiankuDeputy RegistrarPresident ANNEX [1] Rectified on 18 October 2017: the applicant’s name has been corrected from “Xhaffer BARJAMI” to “Xhafer BARJAMI”." ]

[ "SECOND SECTION CASE OF KARALYOS AND HUBER v. HUNGARY AND GREECE (Application no. 75116/01) JUDGMENT STRASBOURG 6 April 2004 FINAL 06/07/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karalyos and Huber v. Hungary and Greece, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka, MrC.L.", "Rozakis, MrL. Loucaides,MrK. Jungwiert,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mr T.L.", "Early, Deputy Section Registrar, Having deliberated in private on 16 March 2004, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 75116/01) against the Republic of Hungary and the Hellenic Republic and lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian nationals, Mr Csaba Karalyos and Ms Kármen Huber (“the applicants”), on 7 June 2001. 2. The Hungarian Government were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.", "3. On 10 September 2002 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicants were born in 1967 and 1969 respectively and live in Budapest. 5. The first applicant is an illusionist and the second applicant is his partner. 6. On 1 March 1994 the applicants entered into a contractual relationship with E. Cruise Lines, a Greek company, with a view to performing the applicants’ show on board the cruiser Pallas Athene for 8 months.", "On 24 March 1994 the Greek company shipped the applicants’ equipment on board Pallas Athene where, on the same day, it was destroyed by a fire. The applicants had no insurance. As the Greek company refused to pay compensation for the damage, on 25 January 1995 the applicants brought an action before the Hungarian Pest Central District Court. 7. On 2 February 1995 the District Court ordered the applicants to complete their statement of claims.", "The applicants complied with this order on 22 March 1995. On 7 April 1995 the court exempted the applicants from payment of an advance on court fees. 8. On 3 July 1995 the court ordered the applicants to submit documents with a view to attaching them to the request for information on Greek law to be sent to the Greek authorities. The applicants complied with the order within ten days.", "9. On 15 December 1995 the Hungarian Ministry of Justice received the reply of the Greek authorities requesting further information on the case. On 22 May 1996 the District Court sent the completed request to the Hungarian Ministry of Justice. 10. In reply to the applicants’ enquiry with the District Court as to whether the requested information on Greek law had been obtained, the Ministry of Justice informed the District Court that, due to an administrative mistake, the request had had to be re-sent to the Greek authorities on 27 January 1997.", "11. The Greek authorities’ reply was served on the District Court on 12 May 1997. In their observations of 20 June 1997 the applicants found the Greek authorities’ answer incomprehensible and requested the District Court to obtain more information from the Greek authorities. 12. On 1 September 1997 the applicants submitted evidence.", "13. The District Court having completed the request for information according to the applicants’ observations, on 23 February 1998 the Hungarian Ministry of Justice forwarded the request to the Greek Ministry of Justice. The latter’s reply reached the District Court on 29 May 1998. 14. On 23 December 1998 the defendant company received the District Court’s summons of 21 October 1998.", "15. At the applicants’ request, on 27 October 1998 the District Court granted priority to the case. 16. On 20 April 1999 the District Court held a hearing. The representative of the defendant company, Mr K., a lawyer, failed to attend.", "The District Court was unable to establish whether the applicants’ pleadings and the summons issued by the District Court had been validly served on Mr K. in Greece. Therefore, the District Court ordered an adjournment and, through the Ministry of Justice, requested that: (i) the public prosecutor attached to the first instance court of Pireus verify whether service of the pleadings and the summons on Mr K. was valid under Greek law and whether Mr. K. was employed by the defendant company or whether he had a valid power of attorney; (ii) the first instance court of Pireus certify whether E. Cruise Lines was an existing company under the law of the place of registration, or whether it had merged with another company, and if so, whether the latter was the successor of the former. Assuming that the service was valid under either Hungarian or Greek law, the District Court ordered the defendant company to respond to the applicants’ pleadings within 30 days from the day of service. 17. On 4 November 1999 the Greek Ministry of Justice replied that they were not in a position to fulfil the request for information about specific matters, on which only a lawyer could give an opinion.", "In their reply of 29 November 1999 the Hungarian Ministry of Justice reminded the Greek authorities that under the relevant provisions of the Greek-Hungarian bilateral Treaty on Legal Assistance and of the European Convention on Information on Foreign Law, they were obliged to provide the information requested. 18. On 20 January 2000 the District Court informed the applicants that – according to the documents submitted by the Ministry of Justice on 14 January 2000 – the defendant company “had refused to be served with the pleadings and the summons without giving a reason” and that no information had been submitted concerning the state of Greek law. 19. On 14 July 2000 the District Court again informed the applicants that the information concerning Greek law had not been submitted.", "20. On 1 February 2001 the District Court informed the applicants that – according to the Ministry of Justice – the Greek authorities had refused to provide the information requested. 21. The continued efforts of the Hungarian Ministry of Justice and the Ministry of Foreign Affairs to urge the Greek authorities by notes verbales and telephone contacts on 7 March, 14 September, 12 November 2001, 16 January, 21 August and 19 September 2002 were unsuccessful. 22.", "In the meantime, the Hungarian Ministry of Justice suggested to the District Court to apply Hungarian law instead of Greek law, a possibility provided under section 5 § 3 of Law-Decree no. 13 of 1979 on International Private Law, having regard to the protracted exchange of correspondence. On 3 June 2002 the District Court replied to the Ministry that the information on Greek law was still necessary. It considered that the Greek authorities’ refusal to provide information on a complex legal issue did not render impossible, as such, the establishment of the contents of the foreign law in question. The District Court therefore held that Hungarian law could not be applied.", "23. On a renewed enquiry, the Greek Ministry of Justice informed the Hungarian Ministry of Justice that it had taken all necessary steps in the case but had not yet received any information from the competent authorities. 24. The proceedings are still pending before the District Court. 25.", "Section 5 §§ 1 and 3 of Law-Decree no. 13 of 1979 on International Private Law reads as follows: “Establishing the content of foreign law (1) A court/authority shall ex officio request information about any foreign law unknown to it. If necessary, it shall obtain the opinion of experts and may take into account evidence submitted by the parties. (3) In case the content of the foreign law cannot be established, Hungarian law shall be applied.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION BY HUNGARY 26.", "The applicants complained that the length of the proceedings instituted in Hungary had been incompatible with the “reasonable time” requirement provided in Article 6 § 1 of the Convention, which reads as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 27. The Government contested that argument. 28. The period to be taken into consideration began on 25 January 1995 and has not yet ended. It has thus lasted more than nine years to date before one court instance.", "A. Admissibility 29. The Court notes that the complaint concerning the length of the proceedings against Hungary 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 30. The Government argued that the case was rather complex owing to the international character of the proceedings. They further claimed that the defendant company contributed to the protraction of the proceedings by failing to comply with orders and not accepting the service of summons. 31. The applicants contested this.", "32. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicants and of the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 33. Notwithstanding that the case gave rise to difficult legal issues of foreign law, the Court considers that the length of the case cannot be explained by this fact alone.", "34. As to the conduct of the applicants, the Court considers that they cannot be reproached for having caused any unnecessary delay. It was for the District Court in the first place to ensure the proper administration of justice in the case. 35. As to the conduct of the judicial authorities, the Court notes that the first and only hearing was held on 20 April 1999 and that no judgment has so far been delivered in the case.", "It is regrettable that, after a period of nine years, the District Court was led to conclude that the content of the relevant Greek law could not be established. It has not been explained to the Court why the District Court did not investigate the possibility of locating a legal expert in the matter in Hungary. It notes that this possibility is foreseen in section 5 § 1 of Law-Decree no. 13 of 1979 on International Private Law (see paragraph 25 above); nor is the Court persuaded by the District Court’s reasons for not availing itself of section 5 § 3 of the same Law-Decree in order to allow Hungarian law to be applied to the dispute. The use of the possibilities provided for in section 5 of this instrument could have speeded up the proceedings.", "36. It is also to be noted that, when requesting information from the Greek authorities, the District Court first failed to send all the necessary documents with the result that the request had to be completed and re-sent. The renewed request was then served on the defendant, rather than on the Greek Ministry of Justice on account of an administrative mistake. This delay of approximately one and a half years is attributable to the Hungarian authorities. 37.", "Lastly, as regards the efforts made by the Hungarian Ministry of Justice, the Court observes that, although they contacted the Greek authorities at regular intervals, they did so by means of ordinary correspondence. It was only after five years that they availed themselves of the possibility of contacting those authorities by notes verbales and telephone in order to obtain answers more speedily. 38. In these circumstances, the Court finds that the delays in the case were largely imputable to the Hungarian State. Having regard to the overall length and to the fact that a single hearing has been held in the case and that no judgment has been delivered to date, the Court concludes that the applicants’ case was not heard within a reasonable time.", "There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION BY GREECE 39. The applicants also complained that the Greek authorities have contributed to the protraction of the proceedings instituted in Hungary by failing to provide the information requested by the Hungarian District Court. They invoke Article 6 § 1 of the Convention.", "Admissibility 40. The Court observes at the outset that the impugned proceedings were instituted in Hungary rather than in Greece. In these circumstances, the acts or omissions of the Hungarian court hearing the case can only engage the responsibility of Hungary. In so far as the applicants’ complaint concerns the Greek authorities’ apparent reluctance to co-operate with their Hungarian counterparts, the Court reiterates that it is competent to assure the respect of the text of the European Convention on Human Rights and not that of any other international agreement (Calabro v. Italy and Germany, no. 59895/00, 21 March 2002).", "In the circumstances of the present case, any possible failure on the part of the Greek authorities to respect the Greek-Hungarian bilateral Treaty on Legal Assistance or the European Convention on Information on Foreign Law cannot be the subject matter of a case before the Court. It follows that the applicants’ complaint does not concern an interference with their Convention rights by the Greek authorities. Accordingly, the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be declared inadmissible pursuant to Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 42. The applicants claimed 6,740,000 Hungarian forints (HUF), jointly, in respect of pecuniary damage and HUF 3,000,000 for each of them in respect of non-pecuniary damage. 43. The Government found the applicants’ claims excessive.", "44. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards each of the applicants EUR 10,000 in respect of non-pecuniary damage. B. Costs and expenses 45.", "The applicants did not make any claim under this head. C. Default interest 46. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint against Hungary admissible; 2.", "Declares the complaint against Greece inadmissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention by Hungary; 4. Holds (a) that Hungary is to pay each of the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of Hungary at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 6 April 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "T.L. EarlyJ.-P. Costa Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF MILOJEVIĆ AND OTHERS v. SERBIA (Applications nos. 43519/07, 43524/07 and 45247/07) JUDGMENT STRASBOURG 12 January 2016 FINAL 12/04/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Milojević and Others v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Johannes Silvis,Dmitry Dedov,Branko Lubarda,Pere Pastor Vilanova, judges,and Marialena Tsirli, Deputy Section Registrar, Having deliberated in private on 15 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in three applications (nos.", "43519/07, 43524/07 and 45247/07) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Serbian nationals, Mr Ivan Milojević (“the first applicant”), Mr Miodrag Radosavljević (“the second applicant”) and Mr Petar Veličković (“the third applicant”), on 5 September 2007 and 3 October 2007 respectively. They were born in 1978, 1952 and 1962. 2. The first and the second applicants, who live in Ćuprija, were represented by Mr M. Cvetković, a lawyer practising in Belgrade. The third applicant, who lives in Niš, was represented by Mr Z. Mitić, a lawyer practicing in Niš.", "The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić. 3. The applicants alleged, in particular, that their dismissal violated their right to private life and that judicial decisions delivered in respect of their dismissals were arbitrary. 4. On 3 September 2013 complaints concerning the alleged violation of applicants’ right to private life and arbitrariness of judicial decisions were communicated to the Government and the remainder of the applications was declared inadmissible.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Introduction 5. The applicants were employed as police officers. They were all charged with the commission of various criminal offences.", "They were dismissed from the police force pursuant to Article 45 of the Ministry of Interior Act 1991 which was in force at the time. Subsequently, all the applicants were acquitted. However, their dismissals remained in force. They unsuccessfully challenged their dismissals in civil proceedings before the national courts. B.", "Particular circumstances 1. The first applicant 6. On 26 April 2004 a criminal complaint was lodged against the first applicant with the Jagodina District Court (“the District Court”). He was reported to have instigated his superior, the second applicant, to abuse his power. He was arrested the same day and criminal proceedings were instituted against him.", "7. On 26 April 2004, simultaneously with the initiation of criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court. 8. On 5 May 2004 the Ćuprija Municipal Prosecutor charged the applicant for alleged instigation to abuse of power.", "9. On 7 June 2004 the competent directorate of the Ministry of the Interior rendered a decision by which the applicant was dismissed from the police force. The decision noted that criminal proceedings had been instituted against the applicant and that Article 45 of the Ministry of Interior Act 1991 which was in force at the time of the dismissal could be applied. The applicant lodged an appeal against this decision. On 16 July 2004 the Minister, acting as a second-instance administrative body, rejected his appeal, confirming the dismissal.", "10. On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits. The Disciplinary Court concluded that the applicant had already been dismissed from the police force as a result of the initiation of the criminal proceedings against him and that this fact rendered the disciplinary proceedings redundant. 11. On 29 November 2004 the Ćuprija Municipal Court (“the Municipal Court”) acquitted the applicant.", "The Prosecutor appealed against this decision. On 29 March 2005 the District Court confirmed the Municipal Court’s decision and the applicant’s acquittal became final. 12. Shortly after the applicant’s acquittal in the criminal proceedings, he instituted civil proceedings in which he requested the annulment of the above decisions on dismissal. On 10 March 2006 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his former post.", "The court held that the formulation of Article 45 of the 1991 Ministry of Interior Act left broad discretionary powers to the Ministry of Interior to dismiss its employees even when no criminal responsibility was attributable to them. It concluded that this legal solution “most certainly left the possibility of abuse of this authority.” It also observed that the applicant had been acquitted in criminal proceedings instituted against him. Finally, the court noted that the applicant had been dismissed without any determination of his disciplinary responsibility but solely through the use of the discretionary power given to the Ministry by Article 45 of the 1991 Ministry of Interior Act and without any further reasoning. 13. The Ministry of the Interior appealed against this decision.", "On 2 November 2006 the District Court upheld the decision and reasoning of the Municipal Court. 14. The Ministry of the Interior lodged an appeal on points of law before the Supreme Court. On 25 April 2007 the Supreme Court quashed the District Court’s decision and decided that the applicant’s dismissal was lawful. According to the Supreme Court, the Ministry of Interior had used its discretionary power under Article 45 of the Ministry of Interior Act 1991 in accordance with the law.", "It concluded that the applicant’s acquittal in the criminal proceedings and the absence of a decision on the merits in the disciplinary proceedings were irrelevant to his dismissal. It also held that the lower courts had overstepped the limits of their authority in considering the necessity, proportionality and correctness of the dismissal decision. 2. The second applicant 15. On 26 April 2004 a criminal complaint was lodged against the second applicant with the District Court.", "He was alleged to have committed the crime of abuse of power. He was arrested the same day and criminal proceedings were instituted against him. 16. On 26 April 2004, simultaneously with the initiation of the criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court.", "17. On 5 May 2004 the Municipal Prosecutor charged the applicant with alleged abuse of power. 18. On 7 June 2004 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force. The reasoning of the decision was identical to that in the case of the first applicant.", "The applicant appealed against this decision. On 19 July 2004, the second-instance administrative body confirmed the decision. 19. On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits for the same reasons as in the case of the first applicant. 20.", "On 29 November 2004 the Municipal Court acquitted the applicant. The prosecutor lodged an appeal which was dismissed on 29 March 2005 by the District Court. It confirmed the Municipal Court’s decision and the applicant’s acquittal became final. 21. The applicant instituted civil proceedings after the acquittal, in which he requested the annulment of the above decision on dismissal.", "On 25 April 2005 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his previously held post. The reasoning of the court was the same as in the case of the first applicant. 22. The Ministry of the Interior appealed against this decision. On 8 July 2005 the District Court upheld the decision and reasoning of the Municipal Court.", "23. The Ministry of the Interior lodged an appeal on points of law. On 27 March 2007 the Supreme Court quashed the above decisions on the same grounds as in the case of the first applicant. 3. The third applicant 24.", "On 19 October 1999, the Vranje District Prosecutor lodged an indictment with the Vranje District Court (“the District Court”) against the third applicant for the alleged unauthorised possession of weapons and ammunition. On 17 December 1999 the Vranje District Court found him guilty as charged and sentenced him to one year of imprisonment. 25. On 14 June 2000 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force with the same reasoning as in the case of the first and the second applicants. The applicant appealed.", "On 13 July 2000 the second-instance administrative body confirmed the above decision. No disciplinary proceedings were instituted against the applicant. 26. On 6 November 2001 the Supreme Court confirmed the applicant’s conviction in criminal proceedings. The applicant lodged a request for the re-opening of the proceedings, which was granted.", "On 2 September 2005 the Vranje District Court acquitted the applicant. The Prosecutor appealed against this decision. On 22 February 2006 the Supreme Court confirmed the acquittal. 27. Shortly after the applicant was acquitted in the criminal proceedings, he instituted civil proceedings in which he requested the annulment of the 14 June 2000 decision on dismissal.", "28. On 18 October 2006 the Vranje Municipal Court accepted the applicant’s claim and ordered the Ministry of the Interior to reinstate the applicant in his previously held post. The Ministry of the Interior appealed. On 7 February 2007 the Vranje District Court quashed this decision, giving essentially the same reasons as in the decisions of the Supreme Court delivered in the cases of the first and the second applicant. The applicant lodged an appeal on points of law.", "On 3 August 2007 the Supreme Court upheld the District Court’s decision. C. Other relevant facts submitted by the parties 29. In the criminal proceedings against the third applicant, another police officer, G.M. was a co-defendant. G.M.", "was charged with the same crime as the applicant and was acquitted. He is still employed as a police officer. 30. The third applicant also instituted a separate set of civil proceedings in which he requested compensation for non-pecuniary damage related to his unlawful detention, stress sustained in prison and the loss of reputation caused by the imprisonment. On 10 October 2008 the Gnjilane Municipal Court partially accepted the applicant’s claim and awarded him 780,000 dinars (RSD), (approximately 6,330 euros (EUR)).", "On 18 December 2008 the Gnjilane District Court partially upheld this decision, decreasing the awarded amount to RSD 530,000 (approximately EUR 5,640). The awarded sum was paid to the applicant accordingly. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Constitution (Ustav published in the Official Gazette of the Republic of Serbia – OG RS – no.", "98∕06) 31. The relevant provisions of the Constitution read as follows: “Article 32 Everyone shall have the right to a public hearing before an independent and impartial tribunal established by the law within a reasonable time which shall pronounce judgment on their rights and obligations, grounds for suspicion resulting in initiated procedure and accusations brought against them.” B. Ministry of Interior Act 1991 (Zakon o unutrašnjim poslovima published in the OG RS nos. 44∕91, 79∕91, 54∕96, 17∕99, 33∕99, 25/2000, 8/2001 and 106/2003) 32. The relevant provisions of this Act read as follows: “Article 34 1.", "A person can be employed by the Ministry of Interior in the post of police officer and employee responsible for specific duties if, besides fulfilling the general requirements for employment in the civil service, he also fulfils the following special requirements: 1) that the person was not convicted of criminal offences against constitutional order and security, the armed forces, economy and property, abuse of power and crimes motivated by financial gain or immoral motives; 2) that no criminal proceedings are pending against the person for criminal offences which are prosecuted ex officio and that there is no protective measure established by a final decision of the court precluding the applicant from employment or conduct of duties, as long as such protective measure is in force. ... Article 45 An employee of the Ministry of Interior shall be dismissed ex lege if convicted by a final decision of a court for crimes enumerated in Article 34(1)(1) of this Act; an employee of the Ministry of Interior can also be dismissed if he or she ceases to fulfil the requirements of Article 34(1) or (2) of this Act or it is subsequently discovered that he or she did not meet the requirements for employment in the civil service at the time of employment.” C. Subsequent amendments of the Ministry of interior Act 1991 33. In 2005 the Ministry of Interior Act 1991 was repealed and the Police Act 2005 was adopted following an official letter of the Constitutional Court instructing the Parliament to clarify the reasons for the dismissal of police officers against whom criminal proceedings were initiated. The Constitutional Court in its letter also requested the Parliament to determine the rights of those officers who were acquitted or against whom the charges were dropped.", "Article 165(3) of the Police Act 2005 provides that a police officer can only be suspended pending criminal proceedings. D. Civil Service Act 1991 (Zakon o radnim odnosima u državnim organima published in OG RS nos. 48∕91, 66∕91, 44∕98, 49∕99, 34/2001 and 39/2002) 34. The relevant provision of this Act reads as follows: “Article 6 A person can join the civil service provided that he or she: 1) is a national of SFR Yugoslavia; 2) is over 18 years old; 3) fulfils general health requirements; 4) has adequate education; 5) has never been sentenced for the commission of a crime to more than 6 months’ imprisonment and has never been convicted for a crime which makes that person unsuitable for the civil service; 6) fulfils other requirements provided by law or other rules or by the act on systematisation of a particular organ.” E. Civil Procedure Act 2011 (Zakon o parničnom postupku; published in OG RS, no. 72∕11) 35.", "Article 426 § 11 of the 2011 Act provides that terminated civil proceedings may be reopened if it subsequently becomes possible for a party in civil proceedings to rely on a judgment of the European Court of Human Rights finding a violation of a human right, which could have resulted in a more favourable decision in the domestic proceedings. F. Case-law of the Constitutional Court 36. The Constitutional Court has so far delivered two decisions in cases with essentially the same factual background as those in the present cases (Stefanović v. Serbia, UŽ-753/2008, 19 January 2011 and Radovanović v. Serbia, UŽ-1757/2009, 27 September 2012). The relevant parts of the decision of 27 September 2012 read as follows: “The Constitutional Court finds that Article 45 of the Ministry of Interior Act provides for a possibility, but not an obligation, of delivering a decision on termination of employment of a police officer when criminal proceedings are opened against him for criminal offences that are prosecuted ex officio. Therefore, the only condition that needs to be met at the moment of the delivery of the decision on termination of employment which is founded on the discretionary power from the quoted provision of the Act is that criminal proceedings against a police officer are ongoing.", "In the opinion of the Constitutional Court, the possibility of dismissing a police officer in accordance with Article 45 of the Ministry of Interior Act was introduced precisely for the purpose of protecting the specific nature of the Ministry’s work and its particular significance for State affairs. On the other hand, the actual utilisation of this possibility presupposes the limitation of the rights of individuals for the protection of the public interest. Every limitation of individual rights must be necessary for the achievement of a legitimate goal and that goal is, in this case, the protection of the interests of police integrity. The Constitutional Court points out that the civil courts in labour disputes, when deciding on the annulment of an act delivered on the basis of discretionary power, are bound to examine the lawfulness of such acts. In this particular case, this means that the civil courts should have examined if the decision on the termination of employment could be delivered and if the conditions for its delivery required by law were met.", "This means that the legality of the decision on termination of employment should be assessed in the light of the circumstances of a specific case at the moment of the delivery of the decision. It is the Constitutional Court’s opinion that the subsequent acquittal of the applicant in the criminal proceedings cannot be of relevance when assessing the legality of the impugned decision on termination of employment, since the Ministry of Interior Act prescribes as the only condition for the dismissal the initiation of the criminal proceedings at the time of the delivery of the decision. The Ministry of Interior Act, however, has no instructions on the legal consequences of the final judgment of a criminal court by which the defendant is acquitted and the influence of such decision on the police officer’s dismissal. Since the Ministry of Interior Act gives discretionary power to the competent authority to use or not to use its right to dismiss a police officer if criminal proceedings are instituted against him, and since no provision of this Act provides an answer on what are the legal consequences of the acquittal of the former employee, the Constitutional Court holds that in this particular case it was necessary for the civil courts to assess, besides the legality of the decision on dismissal, the issue of the proportionality between the legitimate aim which was sought to be achieved by these decisions on one side and individual rights on the other. The ordinary courts in this case failed to assess the nature of the limited rights, the aim of that limitation, the achievement of such aim and proportionality between the legitimate aim and the consequences of the limitation of individual rights produced by the decision on dismissal reached in accordance with discretionary powers from Article 45 of the Ministry of Interior Act [...], which resulted in violation of the applicant’s right to a fair trial and his right to work.” 37.", "In its decision of 19 January 2011 the Constitutional Court also noted: “The Constitutional Court finds that the potential use of discretionary powers [under Article 45 of the Ministry of Interior Act] contrary to the purpose for which it was established, or potential abuse of such power, had to be a subject of deliberation in the civil proceedings against the impugned decision on dismissal before the ordinary courts. In the opinion of the Constitutional Court, these proceedings are a ‘corrective measure’ in cases where the discretionary power was used contrary to the purpose for which it was established, especially since the Ministry of Interior Act did not prescribe what will happen to an employee who was dismissed [on the grounds of Article 45], but who was acquitted by a final decision in criminal proceedings or the indictment against him was withdrawn. [...] On the basis of what has been stated, the Constitutional Court holds that, from the perspective of the right to fair trial, the ordinary courts were obliged to examine if in this specific case the discretionary power of the employer prescribed by Article 45 of the Ministry of Interior Act was exercised contrary to its purpose... The Constitutional Court holds that the impugned judgments of the District Court [...] and the Supreme Court [...] violated the applicant’s right to fair trial...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 38.", "The applicants, without relying on any particular provision of the Convention, complain that their dismissal based on the allegation of the commission of criminal offences for which they have been acquitted brought great shame on them and that it deprived them of their material well-being. The Court, being a master of characterisation to be given in law to the facts of any case before it (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), considers that this complaint falls to be examined under Article 8 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1.", "As regards the first and second applicant (a) Whether Article 8 is applicable 39. The Court notes that the parties do not dispute the applicability of Article 8 of the Convention in the present case. 40. It considers that Article 8 is applicable to the applicants’ complaints in that it concerned the protection of their moral and psychological integrity as well as their reputation, all of which fall within the scope of Article 8 of the Convention (see, inter alia, Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Kyriakides v. Cyprus, no.", "39058/05, § 41, 16 October 2008; X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91; Raninen v. Finland, 16 December 1997, § 63, Reports of Judgments and Decisions 1997‑VIII; Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B). Specifically, in respect to the protection of an individual’s reputation, the Court notes that it has been acknowledged as an interest guaranteed by Article 8 of the Convention (see, inter alia, Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; White v. Sweden, no.", "42435/02, § 19, 19 September 2006; Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI; Abeberry v. France (dec.) no. 58729/00, 21 September 2004). 41. The Court further considers that Article 8 of the Convention is applicable to the applicants’ complaints in that they concern the protection of their “inner circle”, particularly the material well-being of themselves and their families (see Oleksandr Volkov v. Ukraine, no.", "21722/11, § 166, ECHR 2013). (b) Exhaustion of domestic remedies 42. The Government maintain that the applicants failed to exhaust the effective domestic remedies. Specifically, they did not bring a civil action in accordance with Articles 157, 172, 199 and 200 of the Obligations Act. The Government further argued that the applicants could have lodged a constitutional appeal.", "43. The applicants made no comment in this respect. 44. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Akdivar and Others v. Turkey, 16 September 1996, §§ 66-67, Reports 1996‑IV; Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports 1998-VIII).", "Where there are several effective remedies available, it is for the applicant to select which remedy to pursue in order to comply with the requirements of Article 35 § 1 (see Airey v. Ireland, 9 October 1979, § 23, Series A no. 32). 45. Turning to the present case, the Court notes that the applicants were dismissed by the administrative decisions of the Ministry of Interior. They all lodged the appeals against these decisions, which were rejected by the second-instance administrative body.", "They further initiated civil proceedings in which they raised complaints that were substantially the same as those brought before the Court and which were decided by three instances at the domestic level. In these circumstances, the Court considers that, having exhausted the available remedies in both administrative and civil proceedings, the applicants could not in addition have reasonably been expected to make use of yet another civil proceedings based on Articles 157, 172 § 1, 199 and/or 200 of the Obligations Act (see Matijašević v. Serbia, no. 23037/04, §§ 32 and 33, ECHR 2006‑X; Hajnal v. Serbia, no. 36937/06, § 121, 19 June 2012). 46.", "The Court further recalls that it has already held that a constitutional appeal should, in principle, be considered an effective domestic remedy, within the meaning of Article 35 § 1 of the Convention, but only in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, nos. 44698/06 et seq., § 51, 1 December 2009). It sees no reason to hold otherwise in the present case, and notes that both applicants introduced their complaints before the Court on 5 September 2007. 47. It follows that both limbs of the Government’s objection concerning the exhaustion of domestic remedies must be dismissed.", "(c) Other admissibility issues 48. The Court is of the opinion that the first and second applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and are not inadmissible on any other ground. They must therefore be declared admissible. 3. As regards the third applicant (a) Compatibility ratione temporis of the third applicant’s Article 8 complaint 49.", "The Court notes that the Government made no objection in their written observations as to the compatibility ratione temporis of the third applicant’s complaint under Article 8 of the Convention. Nevertheless, the Court reiterates that incompatibility ratione temporis is a matter which goes to the Court’s jurisdiction rather than a question of admissibility in the narrow sense of that term (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III). Since the scope of the Court’s jurisdiction is determined by the Convention itself, in particular by Article 32, and not by the parties’ submissions in a particular case, the mere absence of a plea of incompatibility cannot extend that jurisdiction. The Court has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction of its own motion and at every stage of the proceedings (see Blečić, cited above, § 67).", "50. The Court reiterates that, in accordance with the general rules of international law, the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (see, for example, Kadiķis v. Latvia (dec.), no. 47634/99, 29 June 2000). In order to establish the Court’s temporal jurisdiction it is therefore essential to identify, in each specific case, the exact time of the alleged interference. In doing so the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated.", "51. The Court further notes that in cases where the interference pre-dates ratification while the refusal to remedy it post-dates ratification, to retain the date of the latter act in determining the Court’s temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention came into force in respect of that State. This would be contrary to the general rule of non-retroactivity of treaties (see Blečić, cited above, § 79). 52. Applying the above principles to the present case, the Court observes that the applicant was dismissed on 13 July 2000 while the Convention entered into force in respect of Serbia on 3 March 2004.", "The Court reiterates that dismissal is, in principle, an instantaneous act, which does not give rise to any possible continuous situation of a violation of the Convention (see Jovanović v. Croatia (dec.), no. 59109/00, 28 February 2002). The subsequent 2007 decision of the Supreme Court only resulted in allowing the interference allegedly caused by the dismissal – a definitive act which was by itself capable of violating the applicant’s rights – to subsist. That decision, as it stood, did not constitute the interference. Having regard to the date of the applicant’s dismissal, the interference falls outside the Court’s temporal jurisdiction.", "It follows that the applicant’s complaint under Article 8 must be rejected as incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3. 53. In view of this conclusion, it is not necessary for the Court to examine the Government’s further objection based on the applicant’s failure to exhaust domestic remedies, his loss of victim status and the abuse of the right of individual application. B. Merits 1.", "The parties’ submissions 54. The applicants argued that their dismissal amounted to an interference with their right to respect for their private and family life. They in particular argued that their dismissal from the police force on the basis of the initiation of criminal proceedings against them had affected their reputation which affected them all the more in that they worked and lived in small communities. They further argued that it significantly affected the material well-being of themselves and their families. 55.", "The applicants contended that this interference was not in accordance with the law within the meaning of Article 8 of the Convention. They submitted that the provision of Article 45 of the Ministry of Interior Act on the ground of which they were dismissed left unlimited discretionary power to the Ministry to terminate the employment of police officers solely on the basis of the initiation of criminal proceedings. The applicants also claimed that this discretionary power was not consistently applied. They further maintained that the law in question had no provision regulating the renewal of employment upon acquittal in criminal proceedings. They essentially argued that the law was not foreseeable enough and that, for these reasons, it did not satisfy the requirement of lawfulness from Article 8 of the Convention.", "The applicants further argued that the definitive termination of their employment solely on the basis of the initiation of criminal proceedings was not proportionate to the legitimate aim pursued. 56. The Government acknowledged that the applicants’ dismissal consituted an interference with their private and family life, but argued that such interference was in accordance with the law and that it was proportionate to the legitimate aim pursued. 57. They maintained that the applicants’ dismissal was grounded on an explicit legal provision.", "While admitting that this legal provision “had certain failures” in sense that it was “imprecise... in respect of the rights of those persons wishing to return to work with the Ministry of Interior upon... acquittal”, such failures had later been remedied by the Constitutional Court and through the adoption of the new Police Act of 2005. The Government further argued that, although imprecise, the provision was “consistently applied” by the Ministry of Interior and such actions were upheld by the Supreme Court. 58. They further submitted that the interference pursued a legitimate aim, namely the protection of the reputation of the Ministry of the Interior. It was the opinion of the legislature, the Government argued, that the prescribed discretionary power for dismissal was necessary to protect the reputation of the service dealing with detection of perpetrators of criminal acts, and that it was not consistent with the position of police officers to have criminal proceedings initiated against them.", "2. The Court’s assessment (a) Whether there was an interference with applicants’ right to private and family life 59. Although no general right to employment can be derived from Article 8, the Court has consistently held that the notion of “private life” includes professional activities (see, inter alia, Fernández Martínez v. Spain [GC], no. 56030/07, §§ 109-110, ECHR 2014, Bigaeva v. Greece, no. 26713/05, § 23, 28 May 2009, and Oleksandr Volkov v. Ukraine, no.", "21722/11, §§ 165-67, ECHR 2013). The Court reiterates its established case-law which provides that dismissal from office can constitute an interference with the right to respect for private life (see Oleksandr Volkov v. Ukraine, cited above, § 165 and Kyriakides v. Cyprus, no. 39058/05, § 50, 16 October 2008). The reasons for dismissal can also affect the applicants’ reputation (see, mutatis mutandis, Kyriakides, cited above, § 52). It can also have an impact on their “inner circle”, as the loss of job must have tangible consequences for the material well-being of the applicants and their families (see, mutatis mutandis, Oleksandr Volkov, cited above, § 166).", "60. Turning to the present case, the Court is prepared to accept that the dismissal of the applicants from the police force affected a wide range of their relationships with other persons, including relationships of a professional nature. Likewise, the Court accepts that it had an impact on their “inner circle” as the loss of their job must have had tangible consequences for the material well-being of the applicants and their families. Moreover, the Court accepts that the reason for the applicant’s dismissal, namely the initiation of criminal proceedings against them, must have had affected their reputation. 61.", "It follows that the applicants’ dismissal constituted an interference with their right to respect for private life within the meaning of Article 8 of the Convention. (b) Whether the applicants’ dismissal was in accordance with the law 62. The Court reiterates its settled case-law according to which the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no.", "30, p. 31, § 49; the Larissis and Others v. Greece judgment of 24 February 1998, Reports 1998-I, p. 378, § 40; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000‑XI). 63.", "For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see Rotaru, cited above, § 55). 64. An imprecise formulation of the law can be rectified if sufficient procedural safeguards are set in place, such as adversarial proceedings before an independent body which can scrutinize the application of the discretionary powers and ensure that they are not exercised in an arbitrary manner (see M. and Others v. Bulgaria, no.", "41416/08, § 100, 26 July 2011 and Al-Nashif v. Bulgaria, no. 50963/99, §§ 123, 20 June 2002). It is not enough that the discretionary power, unconfined in its terms, is only formally subject to judicial scrutiny (Ostrovar v. Moldova, no. 35207/03, § 100‑101 and 105-108, 13 September 2005). The body in question must be competent to examine whether the measures taken pursue a legitimate aim and are proportionate (M. and Others v. Bulgaria, cited above, § 100).", "65. Turning to the present case, the Court at the outset notes that the Government acknowledge the imprecise formulation of Article 45 of the Ministry of Interior Act. This provision left to the complete discretion of the Ministry the decision about the dismissal of the officers against whom criminal proceedings were under way. It provided no guidance as to the exercise of this discretionary power. It also provided no instruction as to the consequences of the acquittal of the police officers.", "In the absence of any explanation as to the use of the discretion, the legislation on the basis of which the applicants were dismissed was not only imprecise, but it was arbitrarily applied by the Ministry of Interior. 66. The Court further notes that the above deficiencies of the law might have been ameliorated through the establishment of procedural safeguards, such as adversarial proceedings before an independent body, against arbitrary exercise of the discretion left to the Ministry. The Court acknowledges that the applicants had access to civil proceedings to challenge the legality of their dismissal. However, it notes that the Supreme Court explicitly refused to scrutinise the manner in which the discretionary powers were exercised by the Ministry, stymying the attempt of the lower courts to examine the legitimacy and proportionality of the impugned measures.", "The Supreme Court, therefore, failed to provide meaningful independent scrutiny of the applicants’ dismissals. It applied a formalistic approach and left the Ministry full and uncontrolled discretion. As these civil proceedings did not provide any meaningful judicial scrutiny, there was no safeguard against arbitrariness. 67. In view of the above, the Court concludes that Article 45 of the Ministry of Interior Act 1991 on the basis of which the applicants were dismissed did not satisfy the requirement of foreseeability.", "Accordingly, the applicants’ dismissal was not “in accordance with the law”, as required by Article 8 § 2 of the Convention. 68. In view of this conclusion, the Court is not required to examine the remaining issues, which concern the existence of a legitimate aim and proportionality. 69. There has therefore been a violation of Article 8 of the Convention concerning the first and second applicant.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 70. The applicants complain, under Article 6 § 1 of the Convention, that the decisions of the domestic authorities in civil proceedings regarding their dismissal were arbitrary and lacked sufficient reasons. 71. The relevant part of Article 6 § 1 reads as follows: 1.", "In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ... A. Admissibility 1. Exhaustion of domestic remedies 72. The Government argued that the applicants failed to exhaust the effective domestic remedies. Specifically, they failed to lodge a constitutional appeal.", "73. The applicants made no comment in this respect. 74. The Court recalls that it already dealt with this objection when it ruled on admissibility of the applicants’ complaints under Article 8 of the Convention (see §§ 45-47 above). It sees no reason to depart from these findings.", "75. It follows that the Government’s objection concerning the exhaustion of domestic remedies must be dismissed. 2. Compatibility of the third applicant’s Article 6 § 1 complaint ratione temporis 76. The Court has already held that the applicant’s complaint under Article 8 of the Convention related to his dismissal is incompatible ratione temporis with the Convention (see § 52 above).", "It remains to be determined whether the Court has temporal jurisdiction to entertain the applicant’s complaint under Article 6 § 1 of the Convention. 77. The Court must reiterate at the outset the difference in the nature of the interests protected by Articles 6 and 8 of the Convention. While Article 6 affords a procedural safeguard, namely the “right to a court” which will give “reasons for its decisions” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, private and family life. The difference between the purpose pursued by the respective safeguards afforded by Articles 6 and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both Articles (see, among many authorities, McMichael v. the United Kingdom, 24 February 1995, § 91, Series A no.", "307‑B and Golder v. the United Kingdom, 21 February 1975, §§ 20-22, Series A no. 18). The Court observes that the possibility of reaching different legal results when applying different legal rules on one factual situation is obvious (see, for example, in the context of Articles 6 and 8 Anghel v. Italy, no. 5968/09, §§ 71 et seq, 25 June 2013). 78.", "The Court recalls the principles relevant for the determination of its temporal jurisdiction elaborated above (see § 49-51). The Court, however, reiterates its established case-law that when the applicant has a defendable claim under domestic law at the time of the Convention’s entry into force for the Respondent, the claim outlives the original fact, act or situation from which the claim arises and the Court’s competence ratione temporis is to be examined in relation to the domestic proceedings related to this claim if the applicant, in fact, raised the complaint against these proceedings (see Kotov v. Russia [GC], no. 54522/00, § 69, 3 April 2012; Plechanow v. Poland, no. 22279/04, §§ 76 et seq., 7 July 2009; Broniowski v. Poland (dec.) [GC], no. 31443/96, §§ 74 et seq., ECHR 2002‑X; Jovanović, cited above).", "79. The Court finds that there can be no doubt that the applicant’s Article 6 complaint is raised against the proceedings in which the legality of his dismissal was challenged. Given that these proceedings both commenced and were finalized after the Convention came into force in respect of Serbia, and considering that the applicant at the time had a defendable claim under the Serbian legal system, the Court concludes that it has jurisdiction ratione temporis to entertain the applicant’s complaint under Article 6 § 1 of the Convention. 3. Other admissibility issues 80.", "The Court is of the opinion that the applicants’ complaints under Article 6 § 1 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and are not inadmissible on any other ground. They must therefore be declared admissible. B. Merits 1. The parties’ submissions 81.", "The applicants complain, under Article 6 § 1 of the Convention, that the decisions of the domestic authorities in civil proceedings regarding their dismissal were arbitrary and lacked sufficient reasoning. They claim that these decisions simply reiterated legal provisions on the basis of which they were dismissed without any further explanation as to the reasons and the appropriateness of their application in their specific cases. They argue that such considerations were of crucial importance since the legal provision which served as the basis for their dismissal was itself arbitrary, leaving the unlimited discretionary power to the Ministry of Interior to decide whether to apply it or not. 82. The Government disagreed.", "They claimed that the impugned decisions were sufficiently reasoned and that, at the time of their delivery, they constituted a body of a consistent case-law of the domestic courts on the relevant issue. 2. The Court’s assessment 83. The Court reiterates that according to its established case-law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see Ruiz Torija v. Spain and Hiro Balani v. Spain, 9 December 1994, §§ 27, 29, Series A nos.", "303-A and 303-B; and Higgins and Others v. France, 19 February 1998, § 42, Reports 1998-I). Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument of the parties involved (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288). When applying legal rules lacking in precision, however, the domestic courts must show particular diligence in giving sufficient reasons as to why such a rule was applied in a particular manner, given the circumstances of each specific case. Merely citing the language of the imprecise provision cannot be regarded as sufficient reasoning (see H. v. Belgium, 30 November 1987, § 53, Series A no.", "127‑B). 84. Turning to the present case, the Court must at the outset reiterate its finding as to the quality of the legal provision on the ground of which the applicants were dismissed and the conduct of the domestic courts in applying this provision (see §§ 65-68 above). The Court also notes that the Constitutional Court of Serbia, after becoming fully operational in 2008, had an opportunity to deal with two cases raising substantially identical issues to those brought by the applicants before this Court. In its decisions cited above (see §§ 36-37), it concluded that both the law on the basis of which the applicants had been dismissed and the judicial decisions which were identical to those rendered in the applicants’ cases had been arbitrary in violation of the right to a fair trial.", "In light of the almost identical factual and legal circumstances of the cases resolved by the Constitutional Court and the present case, the Court sees no reason to depart from the reasoning of the Constitutional Court. 85. There has therefore been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION A.", "Article 41 of the Convention 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage (a) As regards the first applicant 87. The first applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.", "(b) As regards the second applicant 88. The second applicant claimed EUR 20,000 in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 89. The Government disputed his claims. With respect to pecuniary damage they pointed out that the claim was not substantiated and insufficiently specified.", "They further claimed, in respect of both types of damage, that no causal link could be discerned between the damage and the violation. 90. The Court finds that the applicant’s claim of a lump-sum of EUR 20,000 for pecuniary damage is not specified and substantiated. For these reasons, it rejects this claim. 91.", "With regard to non-pecuniary damage, the Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, it awards the applicant EUR 5,800 in respect of non-pecuniary damage. (c) As regards the third applicant 92. The applicant claimed EUR 95,000 in respect of pecuniary damage for the loss of salary from the day of his dismissal on 13 July 2000 until the day when he managed to find new employment on 28 June 2011. He based his claim on the average salary of the police officers holding the same rank as his at the time of dismissal.", "He did not claim any interests or inflation adjustments. He further claimed EUR 6,000 in respect of non-pecuniary damage. 93. The Government maintained that no causal link could be discerned between the damage and the violation. 94.", "With regard to pecuniary damage, the Court agrees with the Government that there is no causal link between the damage and the violation found. The Court, therefore, rejects the applicant’s claim for pecuniary damage. 95. With regard to non-pecuniary damage, the Court considers that the applicant must have suffered distress and anxiety on account of the violation found. Ruling on an equitable basis, it awards the applicant EUR 2,400 in respect of non-pecuniary damage.", "2. Costs and expenses 96. The second applicant also claimed EUR 5,000 for the costs and expenses incurred before the Court. The third applicant claimed EUR 3,500 for the same purposes. They provided no documentation in support of this claim.", "97. The Government contested these claims as unsubstantiated. 98. 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 (Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI).", "In the present case, regard being had to the fact that the applicants have provided no documentation in support of this claim, the Court rejects it. 3. Default interest 99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. D. Article 46 of the Convention 100.", "Article 46 of the Convention, in so far as relevant, 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....” 101. The third applicant considered that the Court should order the Respondent to re-open the civil proceedings in which the domestic courts would apply the principles established by the Court in this judgment and in such manner secure, upon the finalisation of all relevant administrative procedures of verification, the renewal of the applicant’s employment in the police force.", "102. The Court notes that Article 426.11 of the Civil Procedure Act provides that a case may be reopened if a party to civil proceedings gains an opportunity to rely on a judgment of the European Court of Human Rights finding a violation of a human right, which may have precluded a more favourable outcome of the civil proceedings in question. 103. In light of the above, the Court does not consider it necessary to order the requested individual measure. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the applications of the first and second applicant admissible; 2. Declares the third applicant’s complaint under Article 8 inadmissible; 3. Declares the third applicant’s complaint under Article 6 § 1 admissible; 4. Holds that there has been a violation of Article 8 of the Convention with respect to the first and second applicant; 5. Holds that there has been a violation of Article 6 § 1 of the Convention with respect to all three applicants; 6.", "Holds (a) that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,800 (five thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that the respondent State is to pay the third applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Marialena TsirliLuis López GuerraDeputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF ĐAKOVIĆ v. SLOVENIA (Application no. 32964/02) JUDGMENT STRASBOURG 27 April 2006 FINAL 27/07/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Đaković v. Slovenia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: MrJ. Hedigan, President,MrB.M.", "Zupančič,MrL. Caflisch,MrV. Zagrebelsky,MrE. Myjer,MrDavid Thór Björgvinsson,MrsI. Ziemele, judges,and Mr V. Berger, Section Registrar, Having deliberated in private on 6 April 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 32964/02) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Ratko Đakovič (“the applicant”), on 21 June 2001. 2. The applicant was represented by the Verstovšek lawyers. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.", "3. The applicant alleged under Article 6 § 1 of the Convention that the length of the proceedings before the domestic courts to which he was a party was excessive. In substance, he also complained about the lack of an effective domestic remedy in respect of the excessive length of the proceedings (Article 13 of the Convention). 4. On 7 September 2004 the Court decided to communicate the complaints concerning the length of the proceedings and the lack of remedies in that respect to the Government.", "Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 5. The applicant was born in 1942 and lives in Celje. 6. On 1 April 1992 the applicant was injured in an accident at work.", "The applicant’s employer had taken out insurance with the insurance company ZT. 7. On 29 September 1993 the applicant instituted civil proceedings against ZT in the Celje Basic Court (Temeljno sodišče v Celju) seeking damages in the amount of 2,111,949 tolars (approximately 8,800 euros) for the injuries sustained. Before 28 June 1994, the day the Convention entered into force with respect to Slovenia, the court held one hearing and appointed an ophthalmologist. Between 9 September 1994 and 26 November 1996 the applicant lodged four preliminary written submissions and/or adduced evidence.", "Between 9 September 1994 and 7 May 1996 he made four requests that a date be set for a hearing. Neither of the hearings held on 9 December 1994 and 3 December 1996 was adjourned at the request of the applicant. On 1 January 1995 the Celje District Court (Okrožno sodišče v Celju) gained jurisdiction in the present case due to the reform of the Slovenian judicial system. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 13 February 1997.", "8. On 24 February 1997 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed. On 26 November 1997 the court quashed the first-instance court’s judgment and remitted the case to the first-instance court for re-examination. The decision was served on the applicant on 8 January 1998.", "9. On 11 June 1998 the applicant lodged preliminary written submissions with the Celje District Court. On 22 June 1998 the court held a hearing. The court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 24 September 1998.", "10. On 2 October 1998 the applicant appealed to the Celje Higher Court. ZT cross-appealed. On 21 April 1999 the court quashed the first-instance court’s judgment and remitted the case to the first-instance court for re-examination. The decision was served on the applicant on 31 May 1999.", "11. On 14 June and 23 November 1999 the applicant lodged preliminary written submissions and/or adduced evidence. Neither of the hearings held on 14 June 1999 and 13 December 1999 was adjourned at the request of the applicant. During the proceedings the court sought an additional opinion from the appointed ophthalmologist. At the last hearing the court decided to deliver a written judgment.", "The judgment, upholding the applicant’s claim in part, was served on the applicant on 9 February 2000. 12. On 14 February 2000 the applicant appealed to the Celje Higher Court against that part of the decision rejecting his claim. On 21 March 2001 the second-instance court rejected his appeal. 13.", "On 21 May 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 13 June 2002 the court dismissed the applicant’s appeal. The judgment was served on the applicant on 28 August 2002. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION 14.", "The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 15. In substance, the applicant further complained that the remedies available for excessive legal proceedings in Slovenia were ineffective. Article 13 of the Convention reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 16. The Government pleaded non-exhaustion of domestic remedies.", "17. The applicant contested that argument, claiming that the remedies available were not effective. 18. The Court notes that the present application is similar to the cases of Belinger and Lukenda (Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001, and Lukenda v. Slovenia, no.", "23032/02, 6 October 2005). In those cases the Court dismissed the Government’s objection of non-exhaustion of domestic remedies because it found that the legal remedies at the applicant’s disposal were ineffective. The Court recalls its findings in the Lukenda judgment that the violation of the right to a trial within a reasonable time is a systemic problem resulting from inadequate legislation and inefficiency in the administration of justice. 19. As regards the instant case, the Court finds that the Government have not submitted any convincing arguments which would require the Court to distinguish it from its established case-law.", "20. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Article 6 § 1 21. The period to be taken into consideration began on 28 June 1994, the day when the Convention entered into force with respect to Slovenia, and ended on 28 August 2002, the day the Supreme Court’s decision was served on the applicant. It therefore lasted eight years and two months and decisions were rendered on seven instances. 22.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 23. The Court notes that the decisions were rendered on seven instances and, consequently, cannot conclude that the courts were inactive in the present case. On the contrary, the delay in the present case was caused mainly by the re-examination of the case.", "Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, it considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings may disclose a serious deficiency in the judicial system (see, e.g., Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003). The Government have failed to provide any explanation that would lead the Court to reach a different conclusion. 24. Having examined all the material submitted to it, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement.", "There has accordingly been a breach of Article 6 § 1. 2. Article 13 25. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).", "It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Lukenda, cited above) and sees no reason to reach a different conclusion in the present case. 26. Accordingly, the Court considers that in the present case there has been a violation of Article 13 on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 28. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 29. The Government contested the claim.", "30. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 1,200 under that head. B. Costs and expenses 31.", "The applicant also claimed approximately EUR 1,610 for the costs and expenses incurred before the Court. 32. The Government argued that the claim was too high. 33. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "The Court also notes that the applicant’s lawyers, who also represented the applicant in Lukenda (cited above), lodged nearly 400 applications which, apart from the facts, are essentially the same as this one. Accordingly, in the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,000 for the proceedings before the Court. C. Default interest 34. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 27 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Vincent BergerJohn HediganRegistrarPresident" ]

[ "SECOND SECTION CASE OF ARRAS AND OTHERS v. ITALY (Application no. 17972/07) JUDGMENT STRASBOURG 14 February 2012 FINAL 14/05/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Arras and Others v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Dragoljub Popović,Işıl Karakaş,Guido Raimondi,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 24 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17972/07) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Italian nationals, Mr Antonio Arras, Ms Celestina Dede, Mr Alessandro Dessi and Mr Bachisio Zizi (“the applicants”), on 20 April 2007. 2. The applicants were represented by Mr G. Ferraro, R. Mastroianni and F. Ferraro lawyers practising in Naples. The Italian Government (“the Government”) were represented by Ms Ersiliagrazia Spatafora, Agent of the Government and Ms Paola Accardo, Co-Agent of the Government. 3.", "The applicants alleged that they had been subject to a legislative interference pending their proceedings which was in breach of their fair trial rights under Article 6. 4. On 3 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.", "On unspecified dates, following the introduction of the application, Mr Arras and Mr Dessi passed away. By a letter of 21 October 2010, the Court was informed that their heirs (Roberto Arras, Mirella Arras and Regina Obbino in respect of Mr Arras, and Giorgio Dessi, Loredana Dessi, Susanna Dessi, Alessio Dessi, Silvia Dessi, Carmela Pilleri, and Rosalba Dessi in respect of Mr Dessi) wished to continue with the proceedings. For practical reasons, Mr Arras and Mr Dessi will continue to be referred to as the applicants in this judgment. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicants were born in 1939, 1933, 1933 and 1925 respectively and lived in Italy. A. Background of the case 7. The applicants are all pensioners (retired prior to 31 December 1990) and former employees of the Banco Di Napoli (a banking group which was originally a public entity and was later privatised). 8.", "Before their privatisation, the Banco di Napoli and the Banco di Sicilia were subject to exclusive welfare systems according to Articles 11 and 39 of Law no. 486 of 1985. Their employees benefited from a more favourable equalisation mechanism (meccanismo perequativo) than that available to persons registered with the general compulsory insurance (assicurazione generale obligatoria). In particular, the annual pension increase of their pensioners was calculated on the basis of the salary increases of working employees in equal grades of service (perequazione aziendale). 9.", "In 1990 the Amato reform provided for the privatisation of public banks such as the Banco di Napoli. It suppressed their exclusive pension regimes, replacing them by integrated ones. It provided for the registration of the Banco di Napoli employees with a new welfare management system which was part of the general obligatory insurance managed by the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity. 10. In 1992 a further partial pension reform took place.", "11. In 1993 a number of former employees who had by then retired, entered into a dispute with the Banco di Napoli about the application of certain provisions. In particular, by means of a wide interpretation of section 9 of Law no. 503 of 1992 (hereinafter Law no. 503/92) and section 3 of Law no.", "421 of 23 October 1992 (hereinafter Law no. 421/92) (see Relevant domestic law) the Banco di Napoli attempted to suppress the system of perequazione aziendale calculated on the basis of the salary increases of working employees in equal grades of service, also in respect of persons who were already retired, limiting the latter’s perequazione to an automatic one, namely a simple increase according to the cost of living (perequazione legale), which resulted in a less substantial pension. 12. The latter stand was taken notwithstanding that, according to the applicants, Law no. 218 of 30 July 1990 (Amato reform), particularly its section 3 paragraph 1 and 2, and section 3 of Law no.", "421 of 23 October 1992 (see Relevant domestic law), limited this suppression solely to persons still employed and not persons already receiving a pension. Indeed persons still employed had been given the option of taking up other benefits as agreed by means of corporate collective bargaining. B. General domestic proceedings on the matter 13. On an unspecified date a number of pensioners in the applicants’ position instituted civil proceedings contesting the actions of the Banco di Napoli, since as a consequence they were receiving lesser amounts than those they claimed to be entitled to.", "They highlighted that Laws nos. 503/92 and 421/92 safeguarded any more favourable treatment applicable to persons who had retired prior to 31 December 1990. Thus, they requested the court to find that they had a right to retain the system of perequazione aziendale as applied before the enactment of such laws, and to order the Banco di Napoli to pay the sums it had failed to pay them. 14. By a judgment of 31 October 1994 in Acocella and others v. Banco di Napoli, the domestic court upheld the claimants’ arguments, holding that they had a right to remain under the system of perequazione aziendale even following the entry into force of Law no.", "503/92. The same was confirmed in a number of other judgments in various jurisdictions, including the Court of Cassation (for example, judgments nos. 1388/00 and 12912/00) and more specifically the Court of Cassation in its ultimate formation, namely, sitting as a full court (Sezione Unite). The latter in its judgment (no. 9024/01) of 3 July 2001 upheld the claimants’ argument on the basis of the interpretation of Law no.", "503/92 and Laws nos. 497 and 449 of 1996 and 1997 respectively, which explicitly made reference to perequazione aziendale, confirming that it had not been abrogated by the 1992 laws. The impugned amendments applied solely to persons still employed and not to persons who had retired on or before 31 December 1990. In consequence, the contested right was legitimately due to the former Banco di Napoli employees who had retired by 31 December 1990, for the period between 1 January 1994 (date when a general suspension of pension adjustments ceased) to 26 July 1996 (date when a new suspension of such adjustments started in respect of the Banco di Napoli). 15.", "This interpretation continued to be followed uniformly by all the judges sitting in such cases. C. The enactment of Law no. 243/04 16. Subsequently, various legislative amendments took place attempting to limit the application of the system of perequazione aziendale. These culminated in the enactment of section 1 paragraph 55 of Law no.", "243/04, which interpreted the relevant law to the effect that retired employees of the Banco di Napoli could no longer benefit from the system of perequazione aziendale and made it effective retroactively, with effect from 1992. 17. In the meantime, section 59 paragraph 4 of Law no. 449 of 27 December 1997 (legge finanziaria of 1998) had definitively suppressed all systems of perequazione aziendale, as from 1 January 1998. 18.", "Thus, generally the system of pension adjustment according to perequazione aziendale had been recognised and remained in force from 1994 to December 1997 (just before the entry into force of the legge finanziaria of 1998) for other public banking entities that had previously applied a system of perequazione aziendale, except for the Banco di Napoli. In reality, this benefit had already been suspended in respect of the employees of the Banco di Napoli (and Banco di Sicilia) with effect from 26 July 1996 by means of the Salvabanco law. Thus, for the latter’s employees the system of perequazione aziendale would have applied only from 1 January 1994 to 26 July 1996. D. The applicants’ domestic proceedings 19. In 1996 the applicants instituted proceedings on the lines of the proceedings mentioned above, namely they argued that Laws nos.", "503/92 and 421/92 safeguarded any more favourable treatments applicable to persons who had retired prior to 31 December 1990. Thus, they requested the Naples Tribunal (Labour Section) to find that they had a right to retain the system of perequazione aziendale as applied before the enactment of such laws and to order the Banco di Napoli to pay the sums it had failed to pay them. 20. The applicants expected a favourable outcome in view of the then applicable case-law. Indeed, in accordance with the latter, by a judgment of 26 February 2001, the Naples Tribunal (Labour Section) found in favour of the applicants.", "It ordered the Banco di Napoli to pay the outstanding amounts with inflation increases and legal interest to run from 1 January 1994. 21. On appeal, by a judgment of 24 April 2004, the Naples Court of Appeal confirmed the first-instance judgment upholding the applicants’ right to be covered by the system of perequazione aziendale, however only for the period from 1 January 1994 (date when a general suspension of pension adjustments ceased) to 26 July 1996 (date when a new suspension of such adjustments started in respect of the Banco di Napoli). 22. The Banco di Napoli appealed.", "23. By a judgment (no. 22701/06) of 19 September 2006 deposited in the relevant registry on 23 October 2006 the Court of Cassation reversed the lower courts’ judgments and found against the applicants, ordering the costs of the three court instances to be paid equally between the parties. The Court of Cassation upheld the ground of appeal that the Naples Court of Appeal could not have taken account of Law no. 243/04 - not yet in force at the time of its judgment - an interpretation law applicable retroactively, which was designed to resolve a conflict of interpretation which had been present in domestic case-law and which had ultimately been resolved by the Court of Cassation (Sezioni Unite).", "Indeed, Law no. 243/04 was enacted to resolve the matter as to whether Articles 9 and 11 of Law no. 503/92 applied only to employees still in service or also to retired pensioners, and provided that as from 1994 onwards a perequazione legale (increase according to the standard of living) had to apply to “all” pensioners, irrespective of their date of retirement. 24. The Court of Cassation rejected a claim of unconstitutionality in so far as this interpretative law had retroactive effects impinging on the principle of legal and judicial certainty.", "In this respect it referred to previous Constitutional Court judgments which held that the legislator could impose norms specifying the meaning of other norms in so far as the meaning was one of the options emanating from the original text and in conformity with the principle of rationality. E. Constitutional Court judgment no. 362 of 2008, in analogous proceedings. 25. In 2007, in two different civil cases, the Court of Cassation referred the matter to the Constitutional Court considering that paragraph 55 of Law no.", "243/04 raised issues of constitutionality on a number of grounds: i) recourse to norms of authentic interpretation would be unreasonable in such circumstances, it being disproportionate and counterproductive vis‑à‑vis the aim sought, namely the extinction of contentious proceedings; ii) the impugned law would make the determination of the parties interest dependent on an unconstitutional factor, namely the length of proceedings, and would constitute an inequality of treatment between persons whose proceedings have terminated and others whose proceedings were still pending; iii) the impugned law would unreasonably obliterate the role of the Court of Cassation. 26. By a judgment filed in the registry on 7 November 2008, the Constitutional Court upheld the legitimacy of Law no. 243/04. It considered that the impugned law was an interpretative norm to the provisions of law no.", "503/92 which eradicated perequazione aziendale for all pensioners, irrespective of their date of retirement. Indeed, the interpretative nature of the norm was evident since it had confirmed one of the possible meanings of the original 1992 text, which had also been upheld in some jurisprudence. The impugned law had been reasonable because it aimed to achieve recognition of an equal and homogenous treatment of all pensioners under the current integrative regimes. Moreover, this law had not augmented contentious proceedings since it had rendered their outcome foreseeable. As to the other inconveniences mentioned by the Court of Cassation, it considered that these arose from a random number of circumstances and was not sufficient to consider the norm unconstitutional.", "It further considered that the legislator could enact interpretative laws, once they were based on one of the possible meanings of the original text even if there had been consistent jurisprudence about the matter, and this did not affect the role of the Court of Cassation. II. RELEVANT DOMESTIC LAW 27. Law no. 218 of 30 July 1990, in so far as relevant, reads as follows: Section 1 “Employees of public banks will remain subject to the provisions in force on the date of the entry into force of the present law, up to the renewal of the national collective bargaining contract applicable to the relevant category or up to the stipulation of a new additional corporate contract.", "Section 2 The foregoing is without prejudice to the said employees’ acquired rights, effects of special laws or laws pertaining to the original nature of the relevant public entity.” 28. Sections 3 and 4 of Law no. 357 of 20 November 1990, in so far as relevant, read as follows: Section 3 “(3) The pension rates to be paid by the special management system are subject to automatic equalisation of the compulsory general insurance. (4) Those entitled to pensions or other insurances (in accordance with paragraph 1 ((registration with INPS of bank employees)) retain their right to the more favourable global welfare treatment as provided for by the obligatory invalidity, old-age and survivors’ insurance as provided in the following Article. Section 4 (1) ... is made without prejudice to a more favourable global welfare payment as provided for by the compulsory invalidity, old age and survivors insurance ... which remains applicable.", "(2) The difference between the global welfare payments mentioned in paragraph 1 (tempo per tempo determinato) and the pension, or rate of pension, to be covered by the special management system (according to paragraphs 2 and 3), as increased by automatic equalisation, is to be paid by the employer.” 29. Section 3 paragraph 1 of Law no. 421/92 delegated to the Government the enactment of the relevant law in accordance with the following principles, which in so far as relevant read as follows: “(p) the principles and criteria mentioned above (...) apply to employees as mentioned in section 2 of Law no. 357/90 (persons in employment on 31 December 1990)” 30. Section 9 paragraphs 2 and 3, of Law no.", "503/92, in so far as relevant, reads as follows: “(2) Sections 2, 3, 8, 10, 11, 12, and 13 apply with respect to supplementary company regimes with which the employees as mentioned in section 2 of Law no. 357/90 (persons in employment on 31 December 1990) are registered. (3) Variation to pension payments as a result of paragraph 2 weigh upon the global sum (in accordance with section 4 of Law no. 357/90) unless otherwise agreed through collective bargaining.” 31. Section 1 paragraph 55 of Law no.", "243/04 (regarding pension norms in the sector of public welfare, in support of complementary welfare and stable occupation and for the reorganisation of welfare entities and compulsory assistance), in so far as relevant, reads as follows: “In order to extinguish the contentious judicial litigation relative to payments corresponding to each category of pensioners already registered under equivalent welfare regimes, by means of a full recognition of an equal and homogenous payment to all pensioners registered with the supplementary regimes in force, section 3 (1) (p) of Law no. 421 of 23 October 1992 and Article 9 (2) of Legislative Decree no 503 of 30 December 1992, applies to the global payment received by the pensioners in accordance with Article 3 of Legislative Decree no. 357 of 20 November 1990. The relevant expense is to be borne by the obligatory general insurance.” THE LAW I. PRELIMINARY ISSUE 32.", "The Court notes at the outset that the first and third applicants died on unspecified dates after the lodging of their application, while the case was pending before the Court. Their heirs informed the Court that they wished to pursue the application lodged by them (see paragraph 5 above). Although the heirs of a deceased applicant cannot claim a general right for the examination of the application brought by the latter to be continued by the Court (see Scherer v. Switzerland, 25 March 1994, Series A no. 287), the Court has accepted on a number of occasions that close relatives of a deceased applicant are entitled to take his or her place (see Epiphaniou and Others v. Turkey, no. 19900/92, § 18, 22 September 2009 and Taylan and Others v. Turkey, nos.", "9209/04, 40056/04 and 22412/05, 14 September 2010). 33. For the purposes of the instant case, the Court is prepared to accept that the heirs of the first and third applicants can pursue the application initially brought by Mr Arras and Mr Dessi. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 34.", "The applicants complained that Law no. 243/04 as interpreted by the Court of Cassation on 23 October 2006, constituted a legislative interference with pending proceedings which was in breach of their fair trial rights under Article 6 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 35. The Government contested that argument. A. Admissibility 36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 37.", "The applicants submitted that the enactment of Article 1 paragraph 55 of Law no. 243/04 (which they considered a legal mess in its formulation and which had been furtively presented in parliament) appeared to interpret a 1992 norm, but in reality amended its content with retroactive effect after twelve years of its application. According to the applicants, its sole purpose was to thwart the consolidated interpretative orientation which had been adopted by the domestic courts (including the highest court – the Court of Cassation in its ultimate formation, sitting as a full court), namely that the relevant provisions of the 1992 law did not apply to persons who had retired by 13 December 1990. Following the enactment of Law no. 243/04 the domestic courts were bound to find against the applicants.", "Thus, the State had influenced the result of proceedings, defining their merit and rendering further hearings useless, violating the independence of the judiciary and interfering in the administration of justice. Indeed, the introduction of the 1997 law only confirmed that the 1992 law had not abolished harmonisation regarding long-standing pensioners. Otherwise there would have been no need to enact such law. Neither would there have been need to intervene again in 2004. The State had felt the need to introduce the 2004 legislation only because the courts had adopted a unanimous orientation in favour of the applicants and persons in their position.", "In this light, according to the applicants such a law could not have been foreseeable. 38. The applicants pointed out that there had been no general interest justifying the adoption of Law no. 243/04 which aimed to eliminate retroactively already acquired rights. They noted that the relevant expense in their cases was not borne by the INPS but by the Private Supplementary Fund which was derived from paid up contributions from the employers.", "Thus, the general public had not benefited in any way, it was solely the two private banks which had benefited since they were able to recover or save the sums which the domestic judges had deemed to be due to pensioners such as the applicants. Moreover, this law only affected pensioners from the two mentioned banks and thus was consciously directed to affect these specific disputes. It therefore had nothing to do with a general pension reform, namely the harmonisation following Law no. 449/97, and in fact the applicants were not contesting the effects of that law. 39.", "The Government submitted that there had not been a violation of Article 6. Indeed, the Naples Court of Appeal had found in the applicants’ favour, attributing to them the right to perequazione aziendale for the relevant period. While it was true that the Court of Cassation had reversed this decision on appeal, this had been done upon consideration that the laws that had allowed perequazione aziendale had been changed in 1992 by means of laws that aimed to limit public expenditure and to eliminate once and for all this type of perequazione in order to rationalise the novel social security system following the privatisation of banking entities. Moreover, it had been necessary to align national jurisprudence on the matter which had been conflicting. In particular, the State felt bound to satisfy the aim of having a homogenous pension system.", "40. The Government submitted that most western states had needed to reform their pension systems which had become unsustainable. Law no. 243/04, together with other laws, had not been aimed at influencing judges’ determination of pending litigation, but had been part of a general reform of national relevance. Thus, the Court of Cassation had changed its view following legislative reforms approved by Parliament which, being an expression of the people, had the right and the duty to promote the reforms it considered necessary.", "41. The Government considered that if such reforms had to be contrary to the Convention, then the States would never be able to undertake any reforms. In the present case, the aim of such a law was to abolish a system which had favoured some over others. It was therefore for the Court to determine whether the circumstances of the case had given rise to a violation, bearing in mind the margin of appreciation of the State. 2.", "The Court’s assessment 42. The Court has repeatedly ruled that although the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of a fair trial enshrined in Article 6 preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see, among many other authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 112, Reports 1997-VII; and Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII). Although statutory pension regulations are liable to change and a judicial decision cannot be relied on as a guarantee against such changes in the future (see Sukhobokov v. Russia, no.", "75470/01, § 26, 13 April 2006), even if such changes are to the disadvantage of certain welfare recipients, the State cannot interfere with the process of adjudication in an arbitrary manner (see, mutatis mutandis, Bulgakova v. Russia, no. 69524/01, § 42, 18 January 2007). 43. While it is true that in the present case, unlike in other cases of legislative interference before the Court (see, for example, Stran Greek Refineries, cited above) the State was not a party to the proceedings, this does not preclude an assessment on the circumstances of the case (see, for example, Vezon v. France, no. 66018/01, 18 April 2006, and Ducret v. France, no.", "40191/02, 12 June 2007). 44. The problem raised in the instant case is fundamentally that of a fair trial, and in the Court’s opinion, the State’s responsibility is engaged both in its legislative capacity, if it vitiates the trial or affects the judicial outcome of the dispute, and in its capacity as a judicial authority where the right to a fair trial is violated, including in private law cases between private individuals (see Vezon, cited above § 30, and Ducret, cited above, § 34). 45. The Court reiterates that as regards disputes concerning civil rights and obligations, the Court has laid down in its case-law the requirement of equality of arms in the sense of a fair balance between the parties.", "In litigation involving opposing private interests, that equality implies that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis‑à‑vis his opponent (see, Stran Greek Refineries, cited above, § 44 and Forrer-Niedenthal v. Germany, no. 47316/99, § 65, 20 February 2003). 46. In the instant case, the Court notes that Law no. 243/04 did not concern decisions that had become final and it settled once and for all the terms of the disputes pending before the ordinary courts retrospectively.", "Thus, its enactment in reality determined the substance of the disputes and the application of it by the various ordinary courts made it pointless for an entire group of individuals in the applicants’ position to carry on with the litigation. 47. In these circumstances the Court considers that there cannot be said to have been equality of arms between the two private parties as the State found in favour of one of the parties when it enacted the impugned legislation. 48. The Court further reiterates that only compelling general interest reasons could be capable of justifying interference by the legislature.", "Respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection (see Stran Greek Refineries, cited above, § 49). 49. The Court notes that the domestic courts had consistently applied jurisprudence in favour of the applicants, and this was confirmed also by the Court of Cassation in its highest formation, therefore it cannot be said that there had been diverging jurisprudence as claimed by the Government. As to their argument that the law had been necessary to achieve a homogenous pension system, in particular by abolishing a system which favoured some over others, while the Court accepts this to be a reason of some general interest, it is not persuaded that it was compelling enough to overcome the dangers inherent in the use of retrospective legislation, which has the effect of influencing the judicial determination of a pending dispute. The Government have submitted no other arguments capable of justifying such an intervention in favour of the Banco di Napoli.", "50. In conclusion, bearing in mind the above, there was no compelling general interest reason capable of justifying the legislative interference which applied retroactively and determined the outcome of the pending proceedings between private individuals. 51. There has therefore been a violation of Article 6 § 1. III.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 52. The applicants complained that the legislative changes were discriminatory in different ways. They relied on Article 14 of the Convention, which in so far as relevant reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 53. The Court notes that Article 6 is applicable to the present case and this suffices to hold that Article 14 is also applicable. 54.", "The Court reiterates that a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background (see Stec and Others, [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006-VI). A. Vis-à-vis persons still employed 55.", "The applicants submitted that the changes treated persons in different situations in the same way. Indeed, the applicants had by then already reached pensionable age and unlike persons still employed, they could not receive any benefits which according to the reform could be acquired during working life, such as incentives in terms of contributions and taxation to stipulate a supplementary pension and to set up individual pension schemes, together with strengthening their retirement position through collective agreements. The impugned legislative changes affecting persons who were then 85 years of age had the sole intention of affecting specified subjects to the advantage of the two above-mentioned banks just before they were to be taken over by a powerful banking group with exceptional influence. 56. The Government submitted that the retention of perequazione aziendale to the benefit of the applicants, in the context of a general pension reform, would have been in contradiction with the principle of equality of treatment of all pensioners.", "Thus, the reform had only aimed to remove an added benefit which had only been applicable to the applicants and not to other pensioners. 57. The Court notes that discrimination may arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). However, the Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports of Judgments and Decisions 1997-I).", "The scope of this margin will vary according to the circumstances, the subject matter and the background (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998-II). 58. While it is true that the applicants pertained to a group of persons who had already retired and who therefore could not make up their reduction in pension (as a consequence of Law no. 243/04) by means of other benefits which other persons still employed could obtain throughout their working life, the Court notes that the aim of Law no. 243/04 was to achieve an equality of treatment of all pensioners, current and future.", "Moreover, the Court notes that a wide margin is usually allowed to the States under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98). It follows that, even if the principle derived from Thlimmenos were applied to the applicants’ situation, there is, in the Court’s view, objective and reasonable justification for not distinguishing in law between persons who had already begun to receive a pension and others who were still working. 59. Thus, this part of the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.", "B. Vis-à-vis other pensioners who had been working for other former public banks 60. The applicants claimed that they had been discriminated against vis‑à-vis other pensioners who had been working for other former public banks, as certain favourable legal provisions had been made to the exclusion of the former employees of the Banco di Napoli (the Salvabanco law). 61. The Court reiterates that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007, and Burden v. the United Kingdom [GC], no.", "13378/05, § 60, ECHR 2008). 62. The Court notes that under this complaint, the difference complained of appears to relate to the fact that while employees of the Banco di Napoli were originally entitled to (but eventually denied) perequazione aziendale from 1 January 1994 to 26 July 1996 as a consequence of the Salvabanco Law, other former employees of other public banking entities were originally, and remained, entitled to this benefit from 1 January 1994 to December 1997. 63. Both in so far as the complaint relates to the fact that the legislative interference caused the applicants - as Banco di Napoli employees - to receive a different treatment from that of other employees of public banking entities in general, to whom the relevant laws did not apply, and in so far as it relates to the duration of this entitlement, the Court notes that because of their history in the Italian system the employees of the Banco di Napoli (and the Banco di Sicilia) cannot be considered to be in an analogous position to that of employees of other public banking entities.", "64. It follows, that this part of the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. C. Vis-à-vis other pensioners whose domestic proceedings had terminated 65. The applicants alleged that a further discrimination had arisen, between pensioners of the Banco di Napoli whose domestic proceedings had terminated before the change of case-law, and those who were still pursuing proceedings. 66.", "See paragraph 54 above in respect of the Government’s submissions. Moreover, the Government made reference to the court’s findings in Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011) which concerned similar circumstances. 67. The Court has previously held that the choice of a cut-off date when transforming social security regimes must be considered as falling within the wide margin of appreciation afforded to a State when reforming its social strategy policy (see Twizell v. the United Kingdom, no.", "25379/02, § 24, 20 May 2008). However, what needs to be considered is whether in the instant case the impugned cut-off date arising out of the application of Law no. 243/04 can be deemed reasonably and objectively justified. 68. While in the present case, the justification is not as strong as that in the Maggio case invoked by the Government, the Court is ready to accept that Law no.", "243/04 was intended to level out any favourable treatment arising from the previous application of the provisions in force, which had guaranteed to persons in the applicants’ position a higher adjustment, namely a perequazione aziendale as opposed to legale. The Court reiterates that in creating a scheme of benefits it is sometimes necessary to use cut-off points that apply to large groups of people and which may to a certain extent appear arbitrary (see Twizell, cited above, § 24). While it is true that in the present case the impugned legislation affected a smaller number of people, mainly octogenarians who were previously employed by the Banco di Napoli and whose proceedings were still pending, the Court considers that, particularly bearing in mind the wide margin of appreciation afforded to States in this sphere, the impugned cut-off date can be deemed reasonably and objectively justified. 69. The fact that the impugned cut-off date arose out of legislation enacted pending the applicants’ proceedings does not alter the above conclusion for the purposes of the examination under Article 14.", "70. It follows that, this part of the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 71.", "The applicants further complained that such a measure constituted an arbitrary interference with their possessions. They relied on Article 1 of Protocol No. 1 to the Convention, which in so far as relevant reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 72.", "The Government contested that argument. A. The parties’ submissions 73. The applicants submitted that the retroactive legislation constituted a retroactive expropriation of their possessions, namely acquired rights which had matured thirteen years earlier. It compared the situation with the case of Agrati and Others v. Italy, nos.", "43549/08, 6107/09 and 5087/09, 7 June 2011), save that in the present case there had been no public interest. 74. The Government submitted that applying a system of perequazione legale as opposed to aziendale could not constitute an illegitimate interference with property under Article 1 of Protocol No. 1 since the provision allowed States to enforce such laws as deemed necessary to control the use of property in accordance with the general interest. Indeed, according to the Court’s case-law, even assuming that Article 1 of Protocol No.", "1 guarantees benefits to persons who have contributed to a social insurance system, it cannot be interpreted as entitling that person to a pension of a particular amount (Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004-IX). Moreover, the Government noted that the applicants’ salaries were still subject to adjustment according to the cost of living, thus safeguarding their purchasing power. They further submitted that the aim of the law was to harmonise the pension system, by treating equally all pensioners, and abolishing a distinction between those who had retired before 31 December 1990 and those who retired later. Moreover, the burden imposed on the applicants had been limited and proportionate.", "The Government made reference to the Court’s case-law on this matter, particularly the case of Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011). B. The Court’s assessment 1. General Principles 75.", "The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an “asset” falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it.", "Where that has been done, the concept of “legitimate expectation” can come into play (see Maurice v. France [GC], no. 11810/03, § 63, ECHR 2005‑IX). 76. Article 1 of Protocol No. 1 does not guarantee as such any right to become the owner of property (see Van der Mussele v. Belgium, 23 November 1983, § 48, Series A no.", "70; Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II; and Kopecký v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004-IX). Nor does it guarantee, as such, any right to a pension of a particular amount (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004-IX; Domalewski v. Poland (dec.), no.", "34610/97, ECHR 1999-V; and Janković v. Croatia (dec.), no. 43440/98, ECHR 2000-X). However, a “claim” concerning a pension can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 where it has a sufficient basis in national law, for example where it is confirmed by a final court judgment (see Pravednaya v. Russia, no. 69529/01, §§ 37-39, 18 November 2004; and Bulgakova, cited above, § 31).", "77. The Court reiterates that Article 1 of Protocol No. 1 comprises three distinct rules: “the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not, however, “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no.", "98; Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II; and Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000‑I). 78. An essential condition for interference to be deemed compatible with Article 1 of Protocol No.", "1 is that it should be lawful. Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions (see Terazzi S.r.l. v. Italy, no.", "27265/95, § 85, 17 October 2002, and Wieczorek v. Poland, no. 18176/05, § 59, 8 December 2009). Article 1 of Protocol No. 1 also requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81-94, ECHR 2005-VI).", "The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52). 79. Where the amount of a benefit is reduced or discontinued, this may constitute interference with possessions which requires to be justified (see Kjartan Ásmundsson, cited above, § 40, and Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009).", "2. Application to the present case 80. The Court firstly notes that the present case deals with pension adjustments and not salaries arising out of a contractual relationship as in the case of Agrati and Others cited by the applicants. However, the Court does not consider it necessary to decide whether the applicants had a possession within the meaning of Protocol No. 1, as in any event it considers that there has been no breach of Article 1 of Protocol No.", "1 to the Convention for the following reasons. 81. The Court has previously acknowledged that laws with retrospective effect which were found to constitute legislative interference still conformed with the lawfulness requirement of Article 1 of Protocol No. 1 (see, for example, Maggio and Others v. Italy, nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, § 60, 31 May 2011).", "It finds no reason to deem otherwise in the present case. Reiterating that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”, the Court accepts that the enactment of Law no. 243/04 pursued the public interest (harmonising the pension system by treating equally all pensioners). 82. In considering whether the interference imposed an excessive individual burden on the applicants, the Court has regard to the particular context in which the issue arises in the present case, namely that of a social security scheme.", "Such schemes are an expression of a society’s solidarity with its vulnerable members (see, mutatis mutandis, Goudswaard-Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005-XI). Nevertheless, the Court notes that Law no. 243/04 did not affect the applicants’ basic pension, and according to the laws in force their pension was still to be augmented over the years according to a perequazione legale. Accordingly, the applicants only lost the more favourable augmentation according to a perequazione aziendale.", "Thus, the Court considers that the applicants were obliged to endure a reasonable and commensurate reduction, rather than the total deprivation of their entitlements (see, conversely, Kjartan Ásmundsson, cited above § 45). 83. In consequence, the measure at issue did not result in the impairment of the essence of the applicants’ pension rights. Moreover, this reduction only had the effect of equalizing a state of affairs and avoiding unjustified advantages (resulting from the Banco di Napoli employees having previously had more favourable treatment) for the applicants and other persons in their position. Against this background, bearing in mind the State’s wide margin of appreciation in regulating the pension system and the fact that the applicants endured commensurate reductions, the Court considers that the applicants were not made to bear an individual and excessive burden.", "84. It follows that, even assuming the provision is applicable, the complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 86. The applicants claimed the differential pay-out that they would have received had they not been subject to Law no. 243/04, up to 2010, together with a hypothetical calculation for the years to come according to official statistics on life expectancy and bearing in mind that pensions are transferred to the surviving spouse following death at the rate of 60% of the original pay-out. They therefore claimed the following sums: Mr Arras 31,395.14 euros (EUR), Ms Dede EUR 3,443.16, Mr Dessi EUR 8,599.25 and Mr Zizi EUR 174,822.19 in respect of pecuniary damage. The applicants also claimed non-pecuniary damage in an amount to be specified by the Court.", "87. The Government have not submitted any comments in this respect. 88. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicants did not have the benefit of the guarantees of Article 6 in respect of the fairness of the proceedings. Whilst the Court cannot speculate as to the outcome of the trial had the position been otherwise, it does not find it unreasonable to regard the applicants as having suffered a loss of real opportunities (see Zielinski, cited above, § 79 and SCM Scanner de l’Ouest Lyonnais and Others v. France, no.", "12106/03, § 38, 21 June 2007). To that must be added non-pecuniary damage, which the finding of a violation in this judgment does not suffice to remedy. Making its assessment on an equitable basis as required by Article 41, the Court awards EUR 9,000 to Mr Arras, EUR 5,500 to Ms Dede, EUR 6,000 to Mr Dessi and EUR 30,000 to Mr Zizi for all heads of damage combined. B. Costs and expenses 89.", "The applicants also claimed EUR 41,043.51 plus tax under this head, namely EUR 24,376.96 for the costs and expenses incurred before the domestic courts and EUR 16,666.55 for those incurred before the Court, plus all amounts due in taxes. 90. The Government made no comments in this respect. 91. 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, together with the fact that the domestic courts only attributed half of the costs to the applicants and that the Court only found a violation in respect of Article 6, considers it reasonable to award the sum of EUR 19,000 covering costs under all heads. C. Default interest 92. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 admissible and the remainder of the application inadmissible.", "2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts (i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, to the heirs of Mr Arras, jointly, in respect of pecuniary and non-pecuniary damage; (ii) EUR 5,500 (five thousand five hundred euros), plus any tax that may be chargeable, to Ms Dede in respect of pecuniary and non-pecuniary damage; (iii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, to the heirs of Mr Dessi, jointly, in respect of pecuniary and non-pecuniary damage; (iv) EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable, to Mr Zizi in respect of pecuniary and non-pecuniary damage; (v) EUR 19,000 (nineteen thousand euros), plus any tax that may be chargeable to the applicants, jointly, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 14 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithFrançoise TulkensRegistrarPresident" ]

[ "FIRST SECTION CASE OF GREBENCHENKO v. RUSSIA (Application no. 30777/03) JUDGMENT STRASBOURG 15 February 2007 FINAL 15/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grebenchenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrL. Loucaides, President,MrA.", "Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens,MrG.", "Malinverni, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 25 January 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30777/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Grigoriy Ivanovich Grebenchenko (“the applicant”), on 27 August 2003. 2. The applicant was represented by Mrs O. Suprunova, a lawyer practising in Bataysk.", "The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the quashing of the judgment in his favour by way of supervisory review and the non-enforcement of that judgment. 4.", "On 10 February 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5. The applicant and the Government each filed observations on the admissibility and merits (Rule 54A § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 1. Background 6. The applicant was born in 1943 and lives in the town of Bataysk of the Rostov Region. 7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant.", "As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума). 8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability.", "Instead, he started to receive his pension in a fixed amount (3,479 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period. 2. First round of court proceedings 9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region.", "In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 6,880 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid. 10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court.", "11. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened. 3. Supervisory review proceedings 12.", "On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003. 13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”). 14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review.", "They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal. 15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003.", "The case was transferred to the Presidium for the examination on the merits. 16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium. 17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence.", "The Presidium also noted that the first instance court had misinterpreted the domestic law. The case was remitted to the first instance court for a fresh examination. 4. Second round of court proceedings 18. On 25 December 2003 the Bataysk Town Court examined the case anew.", "In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted this multiplier. 19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month.", "The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from January 2004, pay him 3,937.5 Roubles monthly, with subsequent indexation. 20. On 14 January 2004 the Bataysk Town Court rendered an additional decision in the above case aimed at correction of an arithmetic error in the calculation of the amount awarded to the applicant. 21. The above decisions of the Town Court were not appealed against and became final.", "II. RELEVANT DOMESTIC LAW 22. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review. 23. The CCivP, in the relevant part, provides as follows: Article 376.", "Right to apply to a court exercising supervisory review “1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” Article 379. Proceedings in a supervisory review court after an application for supervisory review was lodged “A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.” Article 381.", "Examination of an application for supervisory review “2. Having examined an application for supervisory review, the judge issues an interim decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision; (2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision. ... 6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.” Article 382.", "Examination of case files obtained by the supervisory review court “2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on – – refusing to remit the case for examination on the merits by the supervisory review court; – remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.” Article 383. Interim decision refusing to remit the case for examination on the merits by the supervisory review court “2. The President of the...regional...court...may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.” Article 387.", "Grounds for quashing or varying judicial decisions by way of supervisory review “The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE APPLICANT'S FAVOUR 24. The applicant complained that the quashing of the judgment of 21 January 2003 in his favour, as upheld on appeal, violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, insofar as relevant, provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 25. The Government argued that the new system of supervisory review, introduced by the CCivP of 2003, differed from the old one. In particular, it was a judge who decided whether to obtain the case-file following a supervisory review complaint and to remit the case to the supervisory review court.", "They considered that the time-limits for examination of applications for supervisory review represented an additional safeguard of the applicant's rights. They further submitted that supervisory review of the judgment in the applicant's favour had been initiated and carried out in full compliance with the applicable procedure. The Government emphasised that the Presidium had reversed the judgment in the applicant's favour because of serious violations of substantive and procedural laws. In particular, the case-file contained no evidence to support the first instance court findings about the multiplier of 1.92 which was, moreover, never provided for by either local or regional legislation. Furthermore, the mentioned multiplier was overestimated and did not correspond to the level of inflation.", "According to the Government, the Town Court in its judgment of 22 April 2004 referred to correct multipliers of 1.25 and 1.26 for the years 2001 and 2002 respectively and reached lawful, just and reasoned conclusions. Accordingly, the Government submitted that a balance between the State interests and the legal requirements on the one hand and the applicant's interests on the other hand had been preserved. 26. The Government finally stressed that the applicant's acceptance of the multiplier in the new proceedings before the Town Court and the fact that he had chosen not to appeal against the judgment of 25 December 2003 showed that he himself considered the initial multiplier incorrect. 27.", "The applicant maintained his complaints and submitted that the Town Court in its judgment of 25 December 2003 had applied underestimated multipliers which he had to accept in order to obtain at least some increase in his pension. A. Admissibility 28. The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.", "B. Merits 1. Alleged violation of Article 6 § 1 of the Convention 29. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61).", "30. In a number of previous cases the Court examined the Russian system of supervisory review under the “old” Code of Civil Procedure. That system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application was not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see, among other authorities, see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X, §§ 54-56; see also Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005; Volkova v. Russia, no.", "48758/99, §§ 34-36, 5 April 2005). In the opinion of the Court, such system was incompatible with the “legal certainty” principle and the applicant's “right to a court” enshrined in Article 6 § 1. 31. The Court also stressed in the above cases that the “old” supervisory review mechanism was used for the purpose of obtaining a rehearing of a settled judicial dispute (see Ryabykh v. Russia, mentioned above; see also, mutatis mutandis, Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004).", "However, the mere possibility of two views on the subject is not a ground for re-examination. Higher courts' power to quash or alter binding and enforceable judicial decisions should be exercised only for correction of fundamental defects. 32. In 2003 the “old” system of supervisory review was replaced with the “new” one (see the “Relevant domestic law” part above). In the opinion of the Government, the new system guarantees better stability of court judgments.", "The Court observes that the supervisory review of the judgment in the applicant's favour was made under the new rules, so the Court has now to determine on the facts of the case whether or not the review was compatible with Article 6 § 1. 33. The Court does not find sustainable the Government's argument that the applicant's rights had been adequately secured by the time-limits set in the new Code of Civil Procedure. It is true that the new CCivP established a one-year time-limit for introducing a supervisory review appeal. However, under the new CCivP the president's power to overrule decisions of other judges refusing to initiate supervisory-review proceedings is not subject to any time-limits (see Denisov v. Russia (dec.), no.", "33408/03, 6 May 2004). Furthermore, it is unclear on what grounds the president may decide to overrule the decision of the judge rapporteur (see the “Relevant domestic law” part above). 34. In the present case the Court notes that on 30 June 2003 the judge rapporteur of the Regional Court examined the defendant's first application for supervisory review of the final judgment in the applicant's favour and refused to initiate the supervisory-review proceedings. Dissatisfied with the refusal, the defendant lodged a repeated supervisory review complaint, now with the President of the Regional Court, challenging the final judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003.", "Four months later, judge B. of the Regional Court, apparently acting within the President's powers provided by Article 383 of the CCivP (on behalf of the President), overruled the decision of 30 June 2003 and remitted the case to the Presidium for the examination on the merits. Thus, having disagreed with the judge rapporteur's previous decision and without giving any reasons for his disagreement, the President made use of his unfettered discretion to launch supervisory review proceedings. 35. The Court further notes that the judgment of 21 January 2003 in the applicant's favour, as upheld on 16 April 2003, was set aside because the first-instance and appeal courts' findings had been insufficiently supported by evidence and they had misinterpreted the law. In other words, the reason for quashing the final judgment in the applicant's favour was the Presidium's disagreement with the way in which the lower courts had assessed the evidence before them and had applied the domestic law.", "Examining the Government's argument that the mentioned shortcomings constituted “serious violations of substantive and procedural laws”, the Court is nevertheless unable to conclude that they amounted to fundamental defects or circumstances of a substantial and compelling character which could have required departure from the principle of legal certainty secured by the Convention (see mutatis mutandis, Ryabykh v. Russia, cited above, and Pravednaya v. Russia, cited above). 36. Thus, the Court considers that the quashing of the judgment of 21 January 2003 in the applicant's favour, as upheld on appeal on 16 April 2003, by way of supervisory review proceedings infringed the principle of legal certainty and the applicant's “right to a court”. There has been, accordingly, a violation of Article 6 § 1 of the Convention. 2.", "Alleged violation of Article 1 of Protocol No. 1 37. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt would be paid and constitutes the beneficiary's “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu, cited above, § 74).", "38. Insofar as the Government submitted that the applicant had failed to appeal against the Town Court judgment of 25 December 2003, the Court observes that the core issue before it is the quashing of the final and binding judgment given in the applicant's favour, an instantaneous act (see Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004). Thus, the eventual outcome of the post-quashing proceedings is not directly relevant for the Court's analysis of the complaint about the annulment of the judgment in the applicant's favour (see Ivanova v. Ukraine, no. 74104/01, §§ 35-38, 13 September 2005), unless, as a result of the subsequent proceedings, the applicant obtained more than he had had before the supervisory review which is clearly not the case.", "39. Having regard to its case-law (see §§ 78-80 in the Brumărescu judgment cited above) and the conclusions under Article 6 above, the Court considers that the quashing of the judgment by way of supervisory review, even though it pursued a legitimate aim, imposed a disproportionate and excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol No. 1 to the Convention. 40. There has accordingly been a violation of that Article.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT 41. The applicant also complained about the non-enforcement of the judgment of 21 January 2003, as upheld on 16 April 2003. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1, both cited above. 42. The Court observes that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the “right to a court” (see Ryabykh v. Russia, cited above, §§ 55-57; Burdov v. Russia, no. 59498/00, § 34, ECHR 2002‑III). 43.", "In the present case the non-enforcement was due, to a large extent, to the fact that the judgment to be enforced was twice challenged by the defendant by way of supervisory review and then quashed by the Presidium in course of the supervisory review proceedings. Having regard to this consideration and its findings above concerning violation of the applicant's rights on account of the quashing of the judgment in his favour, the Court does not consider it necessary, in the circumstances of the case, to examine the applicant's complaint concerning the non-enforcement of that judgment separately and therefore rejects this part of the application under Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 45.", "The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”. 46. In the instant case the applicant was invited to submit, by 31 May 2006, his claims for just satisfaction but failed to do so within the required time-limits. 47. In these circumstances, the Court makes no award under Article 41 of the Convention.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the quashing of the judgment of 21 January 2003, as upheld on appeal on 16 April 2003, by way of supervisory review admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment of 21 January 2003, as upheld on appeal on 16 April 2003, by way of supervisory review; 3. Decides to make no award under Article 41.", "Done in English, and notified in writing on 15 February 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenLoukis LoucaidesRegistrarPresident" ]

[ "FIRST SECTION CASE OF TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY (Application no. 21132/05) JUDGMENT STRASBOURG 11 December 2008 FINAL 11/03/2009 This judgment may be subject to editorial revision. TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY JUDGMENT 1 In the case of TV Vest As & Rogaland Pensjonistparti v. Norway, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens,Giorgio Malinverni, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 26 June and 20 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 21132/05) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by TV Vest AS (Ltd.), a television broadcasting company and the Rogaland Pensioners Party (Rogaland Pensjonistparti) (“the applicants”), on 12 May 2005.", "2. The applicants were represented by Mr. K. Eggen, a lawyer practising in Oslo. The respondent Government were represented by their Agent, Ms T. Steen, Attorney General's Office (Civil Matters). 3. The applicants alleged, in particular, that the imposition by the Media Authority of a fine on the first applicant for having breached a statutory prohibition on political advertising in respect of such broadcasts on behalf of the second applicant, had given rise to a violation of Article 10 of the Convention.", "4. By a decision of 29 November 2007 the Court declared the application admissible. 5. Subsequently, third-party comments were received from the Governments of Ireland and the United Kingdom, which had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 6.", "A hearing took place in public in the Human Rights Building, Strasbourg, on 26 June 2008 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMsT. Steen, Attorney-General's Office,Agent,MrH. Harborg, Advokat,Counsel,MrS. Fagernæs, Adviser, Ministry of Culture and Church Affairs,Ms.I.", "Conradi Andersen, Norwegian Media Authority,Advisers; (b) for the applicantsMrK. Eggen, Advokat,Counsel. The Court heard addresses by Mr Eggen and Mr Harborg. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The first applicant, TV Vest AS (Ltd.), is a television broadcasting company located in Stavanger in the County of Rogaland, on the west coast of Norway. The second applicant, Rogaland Pensjonistparti, is the regional branch of the Pensjonistpartiet, which will be referred to hereinafter as “the Pensioners Party”. This is a small political party, which, in the local and regional elections held on 15 September 2003, obtained 1.3% of the votes nationally, while the Rogaland branch obtained 2.3% of the votes in Rogaland. A. The disputed advertising of the Pensioners Party by TV Vest and administrative sanction 8.", "With a view to the above-mentioned elections the Party asked to purchase advertising time from TV Vest in order to broadcast political advertisements. In the Spring of 2003 TV Vest, considering that the broadcast would be lawful, agreed to broadcast three different advertisements, with a duration of fifteen seconds each, seven times per day over eight days during the period from 14 August to 12 September 2003, and for which the Party would pay a fee of 30,000 Norwegian kroner (NOK). The short broadcasts sought to portray the values of the Pensioners Party and encouraged viewers to vote for them: Advertising film 1: Egil Willumsen, Pensioners Party: “We want this splendid property here to be given back to the people of Stavanger and Rogaland as a specialised hospital for the elderly and chronically ill. Vote for the Pensioners Party.” Picture with text: “We need your vote on 15 September! Vote for the Pensioners Party.” Advertising film 2: Åshild Bjørnevoll, Pensioners Party: “Young people are our future. Some of them live in difficult circumstances and need help and support.", "If they do not receive the assistance they require, it may have major consequences for us all. Vote for the Pensioners Party for a better future.” Picture with text: “We need your vote on 15 September! Vote for the Pensioners Party.” Advertising film 3: Tor Kristian Rønneberg, Pensioners Party: “A sufficient number of good nursing home places. Secure jobs, particularly for older workers, and decent pension schemes. If you are interested in any of this, vote for the Pensioners Party.” Picture with text: “We need your vote on 15 September!", "Vote for the Pensioners Party.” 9. On 12 August 2003 the first applicant notified the State Media Authority (Statens medieforvaltning – the “Media Authority”) of its intention to broadcast the political advertisements and argued that such broadcasting was protected by Article 10 of the Convention. 10. The first applicant broadcast the political advertisements on 14, 15, 16, 18, 28, 29 and 30 August and on 1, 3, 12 and 13 September 2003. According to a public statement by the second applicant dated 30 August 2003, although it had been made aware of the statutory prohibition of political advertising on television, it had nonetheless decided to advertise for a number of reasons: “The Pensioners Party in Rogaland has found it difficult to gain the attention of the media.", "We regard this as a 'golden opportunity' to highlight the party's values and political priorities. The bigger parties are given very wide leeway in connection both with debates and with various initiatives in radio, television and the press. In this regard, the Pensioners Party often feels excluded and has very limited opportunities to make itself heard. In addition, the Party is never identified in national or local opinion polls, but is included in the group 'Others'. We in the Pensioners Party took responsibility for the content of the messages and chose three themes which best reflected the Party's values and basic attitudes at local level ...”.", "11. On 27 August 2003 the Media Authority warned TV Vest that they were considering issuing a fine against the company for violating the ban on political advertising on television. TV Vest answered the letter on 4 September 2003. 12. On 10 September 2003 the Media Authority decided to impose a fine of NOK 35,000 on TV Vest, under section 10-3 of the Broadcasting Act 1992 and section 10-2 of the Broadcasting Regulations, for violation of the prohibition on political advertising in television broadcasts as provided in section 3-1(3) of the Act.", "B. Extent of other coverage of the Pensioners Party in television broadcasts 13. The applicants provided the following information on the extent to which the Rogaland Pensioners Party had been the subject of editorial coverage during the period August-September 2003 by the three broadcasters indicated below: (i) TV2 (privately owned broadcasting company) had informed them that in the course of 2003 the Pensioners Party as such had been given editorial coverage on three occasions: once when TV Vest had brought an action against the Norwegian State to challenge the legality of the fine imposed for the broadcasting of the political advertisements at issue; a second time concerning the party's electoral list cooperation with three other small parties; and lastly in connection with the actual election results. In none of these instances had the local Rogaland Pensioners Party been specifically mentioned. (ii) The NRK (“The Norwegian Broadcasting Corporation”, national public broadcaster) had stated that there were two short items (studio comments) that had been broadcast during the election campaign period, respectively on 27 August and 10 September 2003, both of which had concerned the issue in the present case of political advertising.", "(iii) TV Vest had informed them that the Rogaland Pensioners Party had been referred to three times: on 12 August 2003 when the decision to air the advertisement at issue had been taken, on 27 August 2003 in connection with notification of the State's reaction against these advertisements, and on 10 September 2003 regarding the actual fee. None of the said items had been full features and none of them had focused on the Rogaland Pensioners Party's politics. C. Judicial appeal by TV Vest 14. TV Vest appealed against the decision of 10 September 2003 to Oslo City Court (Oslo tingrett). TV Vest did not dispute that the content was political advertising and thus fell foul of the above-mentioned prohibition in the Broadcasting Act but submitted that this provision was incompatible with the right to freedom of expression in Article 100 of the Constitution and Article 10 of the Convention.", "15. By a judgment of 23 February 2004 the City Court upheld the Media Authority's decision. 16. TV Vest appealed against the City Court's judgment to the Supreme Court (Høyesterett), challenging its application of the law. The Supreme Court granted leave to appeal under Article 6 (2) of the Code of Civil Procedure.", "The second applicant acted as a third-party intervener (hjelpeintervenient). 17. In a judgment of 12 November 2004 the Supreme Court, by four votes to one, upheld the Media Authority's decision. 18. In his opinion, to which three other members subscribed, Mr Justice Oftedal Broch disagreed with the first applicant's submission that the case raised an issue at the heart of freedom of expression.", "The most central aspect of the case was that the legislature had addressed certain issues for the democratic process concerning the limits to be imposed on the use of television for paid communication in the course of a political debate. Thus there was stronger reason to emphasise the legislature's intention in this area than to dwell on the protection of the content in question. The political bodies were better placed than the courts to assess what measures were suitable for heightening the level of political debate. The rationale for the prohibition of political advertising on television was that it was likely to lead to an inappropriate form of political debate. An advertisement containing a political message could easily give a distorted picture of complex issues.", "Opening the possibilities for such advertisements would mean that financially powerful groups would have greater opportunities for marketing their opinions than less resourceful parties or interest organisations. 19. Thus, Mr Justice Oftedal Broch observed, concerns about quality and pluralism in political debate were central and formed the basis of the national courts' assessment. It was not the content but the form and medium of the expression that was being regulated and the Pensioners Party, like other parties, had many other means for addressing the electorate. There was hardly any reason to consider that the prohibition in section 3-1(3) of the Broadcasting Act was incompatible with freedom of expression as protected by Article 100 of the Constitution either in its version as applicable at the material time or in its amended version of 30 September 2004.", "20. As regards the issue of necessity under Article 10 § 2 of the Convention Mr Justice Oftedal Broch had particular regard to the Court's judgments in Vgt Verein gegen Tierfabriken v. Switzerland (no. 24699/94, ECHR 2001‑VI) and Murphy v. Ireland (no. 44179/98, ECHR 2003‑IX), concerning restrictions on political broadcasts relating respectively to animal protection and to the rearing of animals (on television) and to the promotion of religious gatherings (on the radio). Mr Justice Oftedal Broch found, inter alia, as follows: “(60) In the light of these two judgments, how should we assess the Norwegian prohibition of political advertising on television?", "Neither of the cases is completely parallel to the situation now at hand. The main difference from the VgT case is that the latter concerned a group – the Association against Animal Factories – which focused on a topic of current interest: the protection of animals in connection with the industrial production of meat. The association wished to participate in the debate on this issue by showing a film. In this respect, there is a greater parallel between the Pensioners Party and the case of Murphy v. Ireland in terms of its wish to make its existence and manifesto known to a broad public. What distinguishes the present case from the Murphy case is the fact that religious issues in Ireland must be regarded as far more controversial and could presumably cause greater social unrest than political movements in Norway.", "Having said this, however, I find a considerable degree of parallelism between the Court's arguments in Murphy and my own views on the Norwegian prohibition in relation to Article 10. (61) A decisive difference in the Court's approach between the two cases is that in the VgT case the Court found that the State's margin of appreciation was narrow, whereas its margin of appreciation in the Murphy case was broad. A factor that was emphasised in the Murphy case, and that also applies in our case, is that there is no European consensus on political advertising. There are major differences in the rules currently in force in European countries. There is a group of countries, including Norway, Sweden, Denmark, France, Germany and Ireland, which have prohibited political advertising to varying degrees.", "Other countries, such as Hungary, Lithuania, Poland, Romania, Netherlands and Finland, basically have no such barrier. This difference has a further dimension in that the rules in many countries now appear to be undergoing revision. But the draft amendments point in different directions, thereby underscoring the diversity of views. In some countries, the rules are being liberalised, while other countries, like Denmark, are tightening the prohibitions that already exist. In Norway, the Government has announced its intention to present a Bill under which political advertising will be accepted within certain limits.", "At the same time, we have seen that the right to continue to impose a prohibition is being maintained through the amendment to Article 100 of the Constitution of Norway. In other words, the rules governing political advertising are subject to constant change, which should mean that States have considerable freedom to choose their own form of regulation. (62) The type of interference concerned in this case also suggests a broad margin of appreciation. The regulation of political advertising is less a question of the individual's freedom of expression and far more a question of how best to promote political debate and ensure good frameworks for the democratic electoral process. In this light, our political bodies have – hitherto – deemed that political advertising on television promotes an unfavourable simplification of political issues, as well as giving financially powerful groups a greater opportunity to put forward their views.", "These considerations have a direct bearing on the desire to ensure quality in the political process. In this area, it is essential that institutions vested with democratic legitimacy be given a broad margin of appreciation based on their assessment of national conditions. Parliament's evaluation as regards expediency should be applied unless – as stated in the Kjuus case – it appears to be unfounded or otherwise objectively weak. On the other hand, this limitation is important, and particularly in the present case, which has to do with a majority in Parliament determining the general conditions for political debate. This means that the courts should give particularly close consideration to whether the solution has a discriminatory effect.", "In the present case, the grounds cited by Parliament in support of the prohibition of advertising cannot be said to be of a discriminatory nature. On the contrary, it is argued that political advertising will give large, affluent parties a further advantage to the detriment of small parties. (63) In assessing the specific circumstances of the present case, questions can nevertheless be raised as regards the significance that should be attached to the fact that the Pensioners Party, far from having the financial strength to abuse the power of advertising, on the contrary and unlike the more established parties, believed that it needed the advertising precisely to be able to establish a channel to a broad public during the period prior to the municipal elections. Even if this point of view is accepted per se, in my opinion no importance can be placed on it in assessing the prohibition of advertising in relation to the Convention. The reason for this is that it is not democratically possible to differentiate between the various political parties – least of all just before an election.", "And if our basic premise is that all political parties must be treated alike with regard to paid television advertising, the possibility of small parties being overshadowed by large ones cannot be excluded. (64) I have mentioned that there currently appears to be a majority in Parliament in favour of relaxing the prohibition of advertising, that solutions in European countries vary and that in many countries the attitude towards political advertising is now being reassessed – with differing results. I have underscored this very situation as an argument in support of allowing States a broad margin of appreciation. Now one might ask whether the change in the Parliamentary majority's political views on the prohibition of advertising entails that neither the will of the legislature nor the democratic roots of the statute can militate any longer in favour of maintaining the current statutory prohibition on the basis of a broad margin of appreciation. In my opinion, this cannot be the case.", "It would mean that the legislature had renounced its margin of appreciation despite clear statements to the effect that it did not wish to bind future developments to a specific solution. (65) In sum, therefore, it is my view that a prohibition or regulation of political advertising on television must primarily be seen as the establishment of limits for political debate. These are decisions that should be taken by a country's democratic institutions, and consequently an area in which a country's political bodies must be given great freedom of action in relation to Article 10. The fact that there is no European consensus, but on the contrary a wide range of national solutions in this field, strengthens this view. (66) In view of all the channels that political parties can use to communicate their message to a broad public, the prohibition of political advertising on television appears to be a limited interference that is not disproportionate to the purposes the interference aims to achieve.", "In this light, the grounds underlying the provision in section 3-1(3) of the Broadcasting Act are relevant and sufficient. If the special circumstances of the present case are examined more closely, this becomes even clearer. The prohibition of advertising was applied to a political party immediately prior to an election. At such a time, it is particularly important to ensure a 'fair climate of debate', and some countries have limited their ban on advertising precisely to this period. The possibility that a broad interpretation of the prohibition of political advertising on television may conflict with Article 10 of the Convention, as illustrated by the Court's VgT judgment, is, in my opinion, of no significance for the application of Article 10 to the facts of our case, which lies within the core area of the prohibition.", "(67) In the light of the foregoing, it is my view that there has been no violation of Article 10 of the Convention.” 21. The dissenting judge, Mr Justice Skoghøy, stated: “(70) ... I have concluded that the Media Authority's administrative decision to impose a fine on TV Vest is an unlawful interference with the right to freedom of expression under Article 10 of the Convention, and that the appeal by TV Vest AS must therefore be allowed. ... (75) In deciding whether there is a sufficiently pressing need for interference in the right to freedom of expression, the Court has granted national authorities and courts a certain margin of appreciation. The reason for this is that national authorities and courts will often be in a better position to assess the necessity of an interference and have greater insight into any special circumstances that might apply in the individual countries, and the fact that it is the States Parties to the Convention that have the primary responsibility for protecting and enforcing human rights (see Lorenzen et al.", ": Den Europæiske Menneskerettighedskonvention med kommentarer [The European Convention on Human Rights with comments], 2nd edition (2003), p. 23, and Harris/O'Boyle/Warbrick: Law of the European Convention on Human Rights (1995), p. 14). The part of the grounds that states that national authorities will often be in a better position to assess the necessity of an interference also applies, by and large, to the relationship between national courts of law and national legislatures, and against this background the principle has been adopted in Norwegian case-law that when Norwegian courts examine the question whether Norwegian legislation breaches international human rights conventions, they should accord the Norwegian legislature a similar margin of appreciation, see for example Norsk Retstidende (“Rt” - Norwegian Supreme Court Reports) 1999-961. This is not necessary for the purposes of the Convention; nor does the Convention preclude it. As mentioned earlier, however, freedom of expression is one of the fundamental pillars of democracy, and it is therefore important that small political groups are also able to make themselves heard. For this reason, strong objections are raised against attaching too much importance to the opinion of the political majority at any given time as regards how far freedom of expression on political issues should go.", "The Court's case-law is also based on the idea that States' margin of appreciation is relatively narrow in cases regarding expressions of political opinion; see VgT, § 67, and Murphy, § 67. .... (76) The main grounds for the Broadcasting Act's prohibition of political advertising on television is that if such advertising were to be permitted, it could result in financially powerful groups having a greater opportunity than others to disseminate their views to the detriment of parties and special-interest organisations with fewer resources, thereby impairing democratic equality, and in the expression of political opinions through advertising easily becoming sloganised and manipulative and leading to an unfavourable form of debate. The prohibition has been limited to television because this medium is presumed to be particularly effective and to have a greater ability to influence the public than other media (see Proposition No. 58 (1998-1999) to the Odelsting [the larger division of Parliament], p. 12). (77) The reasons cited for not allowing political advertising on television are legitimate in relation to Article 10 § 2 ('protect the rights ... of others'), but as the appellant has forcefully argued, there are also weighty arguments in favour of permitting such advertising.", "Editorial television broadcasts can easily become dominated by the most influential political parties. Smaller parties do not have the same possibilities of making themselves seen and heard. Allowing advertising for political parties would also help to promote direct communication with the voters – without the filtering that takes place through the media's editorial staff. This is a consideration that is heavily emphasised by the Norwegian Government Commission on Freedom of Expression in Norges Offentlige Utredninger (“NOU” Official Norwegian Report) 1999:27, pp. 140-141.", "It is pointed out in the report that complaints that the media to a certain extent 'set the agenda' appear to be justified, and that as a result of the filtering that takes place through the media's editorial processes, the political parties must adopt a strategic approach to the media to ensure that their message is communicated. This situation has been accentuated by the fact that television, which for many reasons must be more 'toughly edited' than newspapers, has become the dominant vector for the general public. (78) With regard to the argument concerning the form of debate, the fact is that the medium of television has contributed towards making political debate more slogan-oriented and agitational, and as the Norwegian Commission on Freedom of Expression points out, it is doubtful whether allowing political television advertising will change the character of political communication to any appreciable degree (see Official Norwegian Report NOU 1999:27, p. 140). The eventuality that financially powerful groups might dominate political debate on television, and that the latter might become overly characterised by slogans and trivialised can be counteracted in other ways, for instance by limiting the extent of, and broadcast time for, political advertising on television. As the Commission pointed out, in a democratic society it is not necessarily illegitimate to appeal to feelings.", "(79) In my opinion, in the light of the above, there cannot be deemed to be a sufficiently pressing social need for a total prohibition of political advertising on television. A total ban is not proportionate to the purposes sought to be achieved. Even if the reasons advanced in support of prohibiting such advertising are legitimate, they are not sufficiently weighty to justify a total ban. (80) The fact that a total prohibition on political advertising on television is incompatible with Article 10 of the Convention is, in my opinion, also evident from the Court's judgment in the case of VgT v. Switzerland. In paragraph 75 of this judgment the Court states that it cannot exclude that a ban on political advertising may be compatible with Article 10 in certain situations.", "However, the Court pointed out that in order for such a prohibition to be acceptable, it must be based on grounds that meet the requirements set out in paragraph 2 of Article 10. The case in question concerned a ban on political advertising on radio and television. In paragraph 74 the Court points out that a prohibition of political advertising that is limited to certain media does not appear to be of a particularly pressing nature. (81) As the first voting judge has mentioned, the VgT case concerns a television advertising campaign presented by an animal protection organisation, and the State has asserted that the judgment must be deemed to be limited to idealistic advertising, in opposition to commercial advertising, and that the scope of the judgment has in any event been narrowed down by the Murphy judgment. I disagree with these arguments.", "The grounds in paragraph 75 of the VgT judgment concern political advertising in general, and there are no grounds for contending that it is limited to idealistic counter-advertising against commercial advertising. Nor are there any grounds in the Murphy judgment for arguing that it aims to deviate from or limit the scope of the VgT judgment. On the contrary, in paragraph 67 of the Murphy judgment, it is emphasised that as far as political speech or debate of questions of general interest are concerned, there is little scope for restrictions under paragraph 2 of Article 10. When the Court concluded in the Murphy judgment that there was no violation of Article 10, this was based on the explicit grounds that the Murphy case – contrary to the case of VgT – concerned the expression of religious beliefs, and that in such cases national States should have a greater margin of appreciation (see paragraph 67 of the Murphy judgment). Reference was made in the specific grounds to the extreme sensitivity of the question of broadcasting of religious advertising in Ireland (paragraph 73).", "Inasmuch as the Court in Murphy accentuates the difference between political and religious advertising, and underscores the special considerations that apply in the case of the expression of religious beliefs in Ireland, the Murphy judgment in my opinion serves not to weaken, but to strengthen and further underpin the view regarding political advertising on television expressed by the Court in the VgT judgment. (82) In paragraph 75 of VgT, the Court emphasised that the animal protection association, which was the applicant in the case concerned, was not a financially powerful group, and this argument has been invoked by the appellant in respect of the Pensioners Party. However, as I pointed out earlier, I do not believe that the arguments justifying the legal basis for interference necessarily apply in full to the present case. In my opinion, it would be totally unacceptable if the right of political parties to use television advertising were to depend on the financial situation of the individual parties. (83) On the other hand, when assessing whether there is a sufficiently pressing social need for a total prohibition of political advertising on television, great importance must in my opinion be attached to the fact that, in connection with the amendment of Article 100 of the Constitution of Norway in 2004, the majority in Parliament's Standing Committee on Scrutiny and Constitutional Affairs was in favour of abolishing the current total prohibition and instead introducing regulating restrictions.", "... (84) ... TV Vest has argued that a total prohibition of televised political advertising will be contrary to Article 100 of the Constitution, as it reads following the constitutional amendment adopted on 30 September 2004. I see no reason to address this question, as it appears to be somewhat unclear whether the majority in the Standing Committee on Scrutiny and Constitutional Affairs considered that the right to political advertising on television derived from the new Article 100, or whether such a right had to be enacted first. In relation to the question whether a total prohibition of political advertising on television is compatible with Article 10 § 2 of the Convention, however, the position taken by the majority in the Standing Committee, in connection with the constitutional amendment, is of considerable interest, in any event. Since the majority in the Standing Committee found the current total prohibition of televised political advertising to be 'unfortunate from the point of view of freedom of expression' and in the underlying grounds overruled the main arguments that were adduced in support of the prohibition at the time it was adopted, I cannot see that it can be claimed with any particular degree of credibility that there is such a pressing social need for such a prohibition that it can be accepted as compatible with paragraph 2 of Article 10. In this connection, I find it necessary to emphasise that the change in the Parliamentary majority's attitude was not caused by changes in society, but is solely due to the fact that the majority has realised that there is no sufficiently pressing social need for such interference with the right to freedom of expression.", "(85) The Media Authority's administrative decision of 10 September 2003 to impose a fine on TV Vest was taken under section 3-1(3) (see also section 10-3) of the Broadcasting Act. The advertisements concerned in this case were aired during the election campaign for municipal and county elections in 2003. I see no reason to address the question whether prohibiting political advertising on television during election campaigns is compatible with paragraph 2 of Article 10 of the Convention. The norm that constitutes the legal basis for the administrative decision of the Media Authority contains a total prohibition of political advertising on television. As Lorenzen et al.", "(op. cit. p. 51) points out, when examining the question whether an interference in the exercise of a human right is compatible with the Convention, it is necessary to 'assess whether the national legal basis meets the human rights requirements as regards quality of law in relation to the powers of interference that derive from the Convention and the Court's case-law'. When examining the question whether the national norm that provides legal authority for interference satisfies the requirements set out in the Convention, the question whether the national legal authority for interference is circumscribed sufficiently narrowly so as to satisfy the requirement of proportionality must also be examined. Since the prohibition of political advertising on television, which constitutes the legal basis for the Media Authority's decisions, is not circumscribed sufficiently narrowly so as to satisfy the proportionality requirement set out in paragraph 2 of Article 10, the decision that was made pursuant to this provision must, in my opinion, be found to conflict with the Convention, even though the Convention might authorise the prohibition of political advertising on television during an election campaign.", "If the Norwegian legislature should wish to have such a prohibition, it would in such cases have to be the subject of special consideration, and relevant, sufficiently weighty and convincing grounds would have to be provided. The grounds adduced by the legislature for the existing total prohibition cannot justify a limited prohibition of this nature. (86) On this basis it is my conclusion that the Norwegian Media Authority's administrative decision to impose a fine on TV Vest AS is invalid (see section 3 and also section 2, of the Human Rights Act). ...” II. RELEVANT DOMESTIC LAW AND PRACTICE 22.", "Section 3-1(3) of the Broadcasting Act 1992 reads: “Broadcasters shall not transmit advertisements for life philosophy or political opinions through television. This applies also to teletext.” 23. The Government submitted that in 2005 the Media Authority had found that an advertisement broadcast by TV2 for an anti-terrorism group named the European Security Advocacy Group (ESAG) contained a political message which clearly fell within the meaning of the Broadcasting Act (section 3-1(3)). However, the Authority had concluded that the prohibition could not be enforced because to do so would violate Article 10 of the Convention. The Authority distinguished the facts from the Supreme Court's ruling in the TV Vest case.", "The ESAG advertisement had to be regarded as a contribution to a general public debate on how to fight terrorism, it had been transmitted outside the election period, and had not been connected to any political party or political organisation, but to a (social) interest group. Accordingly, the Authority found more similarities with the Court's judgment in the VgT case and, by applying a narrower margin of appreciation, that the interference could not be said to be necessary for the purposes of Article 10 § 2. III. COMPARATIVE LAW 24. The respondent Government produced a copy of a survey performed by the Secretariat of the European Platform of Regulatory Authorities (“23rd EPRA Meeting, Elsinore, Denmark, 17-19 May 2006, Background paper - Plenary, Political advertising: case studies and monitoring”) on the basis of answers to a questionnaire, received from the authorities of 31 countries, i.e., Austria, Belgium (x2), Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, the Isle of Man, Israel (x2), Italy, Latvia, Lithuania, Luxembourg, FYROM, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Spain, Sweden and Switzerland (x2).", "The report included the following observations: “• Countries with a ban on paid political advertising Paid political advertising is statutorily forbidden in the vast majority of Western European countries such as Belgium, Denmark, France, Germany, Ireland, Malta, Norway, Portugal, Sweden, Switzerland, and the UK. Several countries from central and Eastern Europe such as the Czech Republic and Romania, also have a prohibition of paid political advertising. The most traditional justification for this prohibition is that rich or well-established parties would be able to afford significantly more advertising time than new or minority parties – thus amounting to a discriminatory practice. Another rationale invoked for the restriction or the ban is that it may lead to divisiveness in society and give rise to public concern. It has also been suggested, albeit less frequently, that a prohibition would preserve the quality of political debate.", "•Countries allowing paid political advertising Paid political advertising is allowed in many central and Eastern countries such as Bosnia and Herzegovina, Bulgaria, Croatia, Hungary, Macedonia, Poland, and the Baltic States: Estonia, Latvia and Lithuania. In a few countries such as in Bosnia-Herzegovina (60 days prior to Election Day), and Croatia, political advertising is only permitted during the election period. It is often overlooked that several countries in Western Europe, such as in Austria, Finland, Luxembourg (for the moment, this will change shortly) and the Netherlands also allow paid political advertising. In Italy, until 2003 paid political advertising, i.e. self-managed spaces, was allowed also for national broadcasters, provided that they also transmitted 'political communications spaces' (spazi di comunicazione politica), i.e.", "discussion programmes with the participation of political representatives; now it is allowed only for local broadcasters and has to cost no more than 70% of the price applied to commercial advertisements, whereas national broadcasters may only broadcast them for free. In Greece, while there is a permanent and wide-ranging ban on the political advertisement of persons, paid political advertising of political parties is not prohibited. In Spain, while the ban of political advertising applies permanently for television broadcasters, the Spanish Electoral Code permits paid electoral advertising on commercial radio stations, only during the election period. The main rationale for paid political advertising is that it may enable new candidates to obtain recognition and a profile. It is also often argued that the right to political advertising is an integral part of the right to freedom of expression and information.", "... •Countries allocating free airtime for political parties and/or candidates In the vast majority of countries, such as Belgium (French Speaking Community), Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, parties are usually granted free airtime to present their programmes, sometimes in the format of short advertising spots. The broadcasters are usually reimbursed for their technical costs either by the State or directly by the parties. ... •Countries with no system of allocation of free airtime. Several countries have no specific provisions concerning free airtime for political parties. In a few countries, such as Belgium (Flemish speaking Community), Bulgaria, Norway, Sweden, parties are not granted any free airtime to present their programmes.", "In other countries such as Switzerland, Finland or Cyprus, this is a matter left to the broadcasters, who sometimes allow this practice on a voluntary basis.” 25. Recommendation No. R (99) 15 of the Council of Europe's Committee of Ministers on measures concerning media coverage of election campaigns provided as follows: 5. Paid political advertising “In member States where political parties and candidates are permitted to buy advertising space for electoral purposes, regulatory frameworks should ensure that: - the possibility of buying advertising space should be available to all contending parties, and on equal conditions and rates of payment; - the public is aware that the message is a paid political advertisement. Member States may consider introducing a provision in their regulatory frameworks to limit the amount of political advertising space which a given party or candidate can purchase.” 26.", "The Explanatory Memorandum to that Recommendation included the following comments in relation to the above: Paid political advertising “Paid political advertising in the broadcast media has traditionally been prohibited in many Council of Europe member States, whilst it has been accepted in others. One of its major advantages is the opportunity which it provides for all political forces to widely disseminate their messages/programmes. On the other hand, it may give an unfair advantage to those parties or candidates who can purchase important amounts of airtime. In view of the different positions on this matter, the Recommendation does not take a stance on whether this practice should be accepted or not, and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules: one, that equal treatment (in terms of access and rates) is given to all parties requesting airtime, and two, that the public is aware that the message has been paid for. It may also be considered important to set limits on the amount of paid advertising that can be purchased by a single party.", "Nevertheless, the Recommendation does not specify whether it is desirable to do so nor does it set any precise limits on the amount of paid advertising, as it is considered that the decision on this matter should be taken at the national level.” 27. The Committee of Ministers, on 7 November 2007, adopted recommendation Rec(2007)15, which entailed a revision of Recommendation No. R (99) 15. In so far as the above provisions were concerned it may be noted that the Draft Explanatory Memorandum ((2007) 155 add) included the following addition: “78. In view of the different positions on this matter, Recommendation CM/Rec(2007)... does not take a stance on whether this practice should be accepted or not, and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules, in particular that equal treatment (in terms of access and rates) is given to all parties requesting airtime.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 28. The applicants complained that the fine imposed by the Media Authority on 10 September 2003, upheld by the Supreme Court at last instance on 12 November 2004, constituted a violation of Article 10 of the Convention, of which the relevant part reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2.", "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ... or for maintaining the authority and impartiality of the judiciary.” 29. The parties shared the view that the impugned measure amounted to an interference with the applicants' right to freedom of expression as guaranteed by paragraph 1 of the above provision. They further agreed that the measure was prescribed by law, namely sections 3-1(3) and 10-3 of the Broadcasting Act, and pursued the legitimate aim of protecting “the rights of others” within the meaning of paragraph 2 of Article 10. The Court sees no reason to hold otherwise. On the other hand, the parties were in disagreement as to whether the interference was necessary in a democratic society.", "A. Submissions of the parties 1. The applicants 30. The applicants maintained that the existence of an absolute prohibition of political advertising on television combined with the absence of rules providing for party political broadcasts had had the effect that the Pensioners Party had been prevented from communicating directly with its electorate on television. The absolute prohibition was neither supported by sufficient reasons nor proportionate to the aims pursued. 31.", "They submitted that in Norway political advertising was allowed without any limitation in all media other than television and that no weighty reasons could justify such different treatment of television broadcasting. 32. The broadcast advertisements had focused on the Pensioners Party's core values and did not contain any statements that could reasonably be viewed as distorting or reducing the quality of political debate. 33. The Pensioners Party was a small political party, without powerful financial means or support from strong financial groups.", "It seldom received any coverage in editorial television broadcasting and thus had a real need to establish direct communication between itself and the electorate. 34. This need had been especially pressing, since, unlike the situation in many other European States, including the United Kingdom, there was no system of party political broadcasts providing for free airtime with a possibility for political parties to present their statements directly to the electorate. As confirmed by the survey conducted by the ERPA Secretariat (see paragraph 24 above) Norway was one of very few Contracting States that not only prohibited political advertising on television but also failed to regulate party political broadcasts, which was important to bear in mind in determining the scope of the margin of appreciation. This state of affairs in effect meant that political speech on television was channelled through broadcasters' editorial staff functioning as gate keepers.", "Such a regulation favoured established political parties and established politicians, while small political parties such as the Pensioners Party suffered and were in fact prevented from gaining efficient access to public space through television. A total ban on all forms of political advertising on television had an opposite effect to that of creating an equal playing field between the political parties. 35. As shown by the ERPA Survey, many countries had been able to regulate paid political advertising by less stringent means than an absolute prohibition. This cast doubt on the Government's argument that a prohibition was the only possible way of achieving the legitimate aims pursued.", "The Government's contention that a finding of a violation of Article 10 in the present case would affect important aspects of Norwegian democracy, such as the structure and size of political parties, party financing and the conduct of election campaigns, was unsubstantiated. 36. Since the instant case concerned the publication of political speech for a political party before a political election, the speech at issue fell within the core protection area of Article 10 of the Convention. Whereas in the above cited VgT judgment the Court had applied a strict margin of appreciation relating to speech of “general interest”, an even stricter standard should be applied to political speech emanating from political parties. Unlike the finding in the Murphy judgment, there were no country-specific sensitivities in the instant case that could justify a special margin of appreciation or relevance being given to the potency and pervasiveness of the broadcasting media.", "37. The applicants did not dispute that the lack of European consensus could be a relevant factor when determining the extent of the Contracting States' margin of appreciation. However, this was only one of many factors to be taken into account. The Court's Article 10 case-law, notably that relating to defamation, illustrated that a lack of consensus had not prevented it from applying a narrow margin. Both the VgT and the Murphy judgments showed that it was the nature of the speech in question which was decisive for the scope of the margin and that it was narrow in the area of political speech.", "38. In asserting that it had a wide margin, the majority of the Supreme Court had only made reference to general circumstances that obtained in some of the Contracting States. While the Supreme Court had held that considerable weight should be given to Parliament's decision to prohibit political advertising, it was wrong to consider that a political majority at any given time should be given a wide margin of appreciation when it came to regulations governing the political process. As rightly stressed by the dissenting member of the Supreme Court, the core idea behind fundamental free speech protection was to protect a political minority against being subjected to free speech restrictions imposed by the majority. 39.", "As a result of its erroneous approach, considering that Parliament's opinion on the matter should prevail unless it appeared unfounded or lacking in objectivity, the Supreme Court had failed to examine the necessity of the prohibition in the concrete circumstances of the case. 40. In the light of the above, the applicants submitted that the reasons relied on by the Supreme Court were not sufficient, nor proportionate, to justify the interference as being necessary in a democratic society. 2. The Government 41.", "The case did not primarily engage the protection of freedom of expression but first and foremost the integrity of the democratic process and specifically the public's – the voters'- right to fair democratic elections, a right protected by the Universal Declaration of Human Rights and the First Protocol to the Convention. The very essence of democracy was fair elections in which all parties could compete on an equal footing without anyone being able to buy an undue advantage in the form of television advertising. 42. At issue in this case was political advertising in the strict sense: advertisements by a political party in an election period, aimed at influencing the outcome of the elections. It struck at the core of the prohibition in section 3-1(3) of the Broadcasting Act.", "The impugned prohibition was limited to television advertising owing to the powerful and pervasive impact of this medium. Since no such restrictions applied with regard to other media, the prohibition had limited consequences for freedom of expression. A number of much used and effective alternatives for political advertising were available, such as the print media, radio, the Internet, billboards, leaflets, and so on. 43. The prohibition of political advertising on television was not in any way aimed at restricting political speech or debate on questions of public interest.", "Its purpose was to guarantee political expression by ensuring fairness and equality, as well as preserving the quality of political debate. Such advertising would typically be conveyed without opposition, correction or filtering in the form of critical journalism and would have a distinctly partial objective. It would often paint a manufactured picture of the candidate and his political message, not unlike the tone or substance frequently found in propaganda in totalitarian regimes. The possibility of advertising on television would clearly benefit the wealthier and/or established interests in society. There was thus a need to avoid de facto discrimination, distorting democratic processes in favour of the wealthy and powerful.", "44. The prohibition ensured the political impartiality of television broadcasting. It also had the effect of limiting the total amount of money spent on election campaigns by political parties and interest groups, reducing their dependence on wealthy donors and ensuring a level playing-field in elections. The prohibition was aimed at supporting the integrity of the democratic process, to obtain a fair framework for political and public debate, and to avoid a situation where those who could afford it obtained an undesirable advantage by using the most potent and pervasive medium. The right to freedom of expression had therefore to be considered in the light of the right to free elections provided by Article 3 of Protocol No.", "1 to the Convention. The Norwegian prohibition, like those in several other Contracting States, was aimed at securing the “free expression of the opinion of the people in the choice of the legislature”. The prohibition thus achieved a very important aim for democracy. 45. The question at issue was inevitably interlocked with the framework for the Norwegian democratic electoral process.", "A negative outcome of this case would affect important aspects of Norwegian democratic society, such as the structure and size of political parties, political parties' financing and how the election campaigns were carried out. This also militated in favour of a wider margin of appreciation, as held by the Court, inter alia, in Bowman v. the United Kingdom (19 February 1998, § 43, Reports of Judgments and Decisions 1998‑I). 46. In Norway the elected representatives had found it highly necessary only to prohibit political advertising on television, which undoubtedly was a unique medium with regard both to its pervasiveness and to the resources necessary to purchase airtime. As pointed out by the Court in Murphy (cited above, § 69) the potential impact of the medium of expression concerned was an important factor in the consideration of the proportionality of an interference.", "The Court had acknowledged that account ought to be taken of the fact that the audio-visual media had a more immediate and powerful effect than the print media. Reference could also be made to the Council of Europe's recommendation No. R (99) 15 on “Measures concerning media coverage of election campaigns”, where the Committee of Ministers had emphasised “the need to take into account the significant differences which exist[ed] between the print and the broadcast media”. Hence, based on this commonly acknowledged premise, the question before the Court was whether there was a pressing social need to prohibit political advertising on television in Norway. 47.", "The general existence of such a pressing social need was clearly illustrated by the fact that numerous Contracting States had found it necessary to ban all political advertising on television. 48. Whilst the applicants implied that an exception from the ban should be made for parties or groups with little means, this approach was unsustainable. As the Court had recognised in the Murphy case with respect to religious advertising, a case-by-case approach would be difficult to apply fairly, objectively and coherently; thus a total ban would generate less discomfort than by filtering the amount and content of expression by such groupings. Nor would limitations on duration and frequency of advertising and/or on related expenditures guarantee equality of arms to the same extent as an absolute ban.", "Apart from the difficulties involved in defining limits that were fair, circumventing them would be easy and ensuring their effective implementation when it really mattered, in the run-up to an election, would be problematic. Transgressions could always be discovered later but after the elections it would be too late. 49. In the view of the Government, the national elected, representative bodies were better equipped than national courts to evaluate the relevant pressing social needs, particularly as the aim of the prohibition was to secure the integrity of the national democratic process. This was even more true with regard to an international court with further distance from and less knowledge of the functioning of the democracy in the State in question.", "National parliaments were in direct and continuous contact with the vital forces in their countries in this respect. What was more, securing and promoting democracy was a core responsibility for the elected representatives in the Contracting States. 50. The Norwegian prohibition had been thoroughly assessed on several occasions, most recently in May 2006, by the Government and by Parliament, which had found it to be a necessary measure for preserving central elements of Norwegian democracy. The Government invited the Court not to adhere to its findings in its VgT judgment, which was unclear and based on the specific facts of that case and in any event distinguishable.", "Rather, it should follow the general reasoning in its Murphy judgment and, in particular, its approach in Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, Series A no. 113) and Bowman v. the United Kingdom (cited above, § 43) in relation to Article 3 of Protocol No. 1. 51. There was no uniform European conception of the requirements of the protection of the rights of others in relation to broadcasting political advertisements on television.", "Nor was there any legislative consensus as to the need to single out broadcast, as distinct from non-broadcast, political advertising for special regulation, whether within or outside an election period. There was no given solution to the issue of political advertising as indeed the differences throughout Europe showed. Every country had its history and traditions and this might lead to different views on the necessity of a ban. According to the Court's case-law, the Contracting States should therefore enjoy a wider margin of appreciation in regulating such advertisements. 3.", "Third parties 52. The Irish Government supplied information relating to the Irish legislative framework, notably about the application of section 10(3) of the Radio and Television Act 1988, which had been at issue in the above-mentioned Murphy case and which read as follows: “No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.” 53. Referring to the Irish Supreme Court's rulings in Murphy v. IRTC ([1999] 1 IR 12) and Colgan v. IRTC ([2002] IR 490), the Irish Government submitted that where the prohibition on religious and political advertising stemmed from the same or similar concerns regarding sensitivities as to divisiveness and offensiveness, it was inappropriate to apply differing margins of appreciation. This was particularly so as the dividing line between political and religious advertising was not always clear, as the decision on abortion in the Colgan case demonstrated. Consequently, the Irish Government invited the Court to apply a wide margin of appreciation equally to political advertising, preferring the Murphy approach to that followed in VgT.", "Furthermore, the Court's acceptance in Murphy that a filtering process was inappropriate and that a blanket prohibition was preferable was a better approach than that followed in VgT, where it had held that a prohibition on political advertising might in certain situations (though not in the VgT case) be compatible with Article 10. 54. The United Kingdom Government provided information about the legal position in the United Kingdom, where political advertising had been prohibited on radio and television by all legislation since the Television Act 1954 first created commercial television. When enacting the Communications Act 2003, Parliament had taken the view that it was important to maintain the prohibition because: (1) Broadcasting was a particularly powerful and pervasive medium and impartiality was of fundamental importance; (2) Without the prohibition there would be an unacceptable danger that the agenda of political debate would be unfairly distorted in favour of the views held by those wealthy enough to spend most on broadcast advertising. Those with a different point of view would either have to find rich backers to pay for equal time, or allow the case to go unanswered; (3) The prohibition applied to all political advertising, irrespective of content.", "There was no discrimination by reference to the content of the message. 55. The UK Government invited the Court “to confine VgT to its factual circumstances or alternatively to depart from its reasoning”. In that case the Court had rejected without explanation or analysis the contention that the potency and pervasiveness of the broadcast media justified special restrictions on political advertising not applicable to other media. The Court had also omitted to take account of the significance of the availability of alternative means of allowing the applicant to pursue its political objectives.", "Nor had it addressed the point that advertising could damage the impartiality of the broadcaster – an argument which it had accepted in Murphy with respect to religious advertising. The Court appeared to have misunderstood the justification for a ban on political advertising, namely the fact that such a ban could not distinguish between different groups by reference to the power, funds or influence which they happened to have at a particular time. The legislature was entitled to conclude that there was no workable basis for such a partial prohibition. Nor had the Court addressed, far less answered, the point that the legislature was seeking to protect a fundamental interest of a democratic society: that political debate and the political process should not be altered by those who were able and willing to spend large sums of money propagating their political views through the potent medium of broadcasting. In Bowman, the Court had recognised this as a legitimate aim which could justify restrictions on freedom of political speech.", "In VgT the Court had also omitted to refer to the fact that Switzerland was far from an isolated example of a State with legislation prohibiting the broadcasting of political advertising when such restrictions were not applied in other media. 56. Like Bowman, the present case did not simply concern restrictions on political speech; it concerned a balance between freedom of expression for political speech and the need to preserve the integrity of the democratic process in the public interest, a matter in which the State had a margin of appreciation. In any event, there was no clear distinction in this context between religion and morals, on the one hand, and politics on the other. 57.", "The UK Government submitted a copy of a judgment handed down by the House of Lords on 12 March 2008 ([2008] UKHL 15) dismissing an appeal by Animal Defenders International, finding that the prohibition on the broadcasting of political advertising in the UK under the Communications Act 2003 was consistent with Article 10 of the Convention. B. Assessment by the Court 1. General principles 58. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no.", "1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. 59.", "In this connection, according to the Court's case-law there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Lingens v. Austria, 8 July 1986, §§ 38 and 42, Series A no. 103; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 45, Reports 1998‑I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 46, ECHR 1999-VIII; Vgt Verein gegen Tierfabriken, cited above, § 66; and Murphy, cited above, § 67).", "60. Moreover, the Court has held that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference. The Court has acknowledged that account must be taken of the fact that the audio-visual media have a more immediate and powerful effect than the print media (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Murphy, cited above, § 69). 61.", "It should also be pointed out that in the above-mentioned Bowman judgment, concerning certain electoral law limitations on pre-election expenditure, the Court held (see paragraph 41) that in such a context it was necessary to consider the right to freedom of expression under Article 10 in the light of the right to free elections protected by Article 3 of Protocol No. 1 to the Convention, which provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” Moreover, in that case the Court held as follows: “42. Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 22, § 47, and the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, §§ 41–42).", "The two rights are inter-related and operate to reinforce each other: for example, as the Court has observed in the past, freedom of expression is one of the 'conditions' necessary to 'ensure the free expression of the opinion of the people in the choice of the legislature' (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 24, § 54). For this reason, it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely. 43. Nonetheless, in certain circumstances the two rights may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the 'free expression of the opinion of the people in the choice of the legislature'. The Court recognises that, in striking the balance between these two rights, the Contracting States have a margin of appreciation, as they do generally with regard to the organisation of their electoral systems (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, pp.", "23 and 24, §§ 52 and 54).” 62. In sum, the Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). 2. Application of these principles 63.", "Turning to the particular circumstances of the instant case, the Court observes at the outset that the disputed decision by the Media Authority of 10 September 2003 to impose a fine on TV Vest was taken on the ground that TV Vest had broadcast political advertisements for the Pensioners Party in breach of the prohibition of political advertising on television laid down in section 3-1(3) of the Broadcasting Act. The prohibition was permanent and absolute and applied only to television, whilst political advertising through all other media was permitted. 64. The impugned advertisements consisted of a short portrayal of the Pensioners Party and encouraged viewers to vote for the Party in the forthcoming elections. Irrespective of the fact that it was presented as a paid advertisement rather than as part of journalistic coverage of a political debate, the content of the speech in question was indisputably of a political nature.", "Thus, as was also the case in VgT, the impugned advertisement obviously fell outside the commercial context of product marketing, an area in which States traditionally have enjoyed a wide margin of appreciation (see VgT, cited above, § 69; markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 33, Series A no. 165, and Jacubowski v. Germany, 23 June 1994, § 26, Series A no. 291-A). Moreover, unlike the situation in Murphy (cited above, § 67), there is nothing to suggest that the advertisements included any content that might be liable to offend intimate personal convictions within the sphere of morals or religion. For these reasons alone, the Court is unable to share the opinion held by the Supreme Court's majority that the present case was more akin to Murphy than Vgt (see paragraphs 60-61 of the Supreme Court's judgment, cited at paragraph 20 above).", "On the contrary, it agrees with the minority (see paragraphs 80-81 of the Supreme Court's judgment, cited at paragraph 21 above) that the political nature of the advertisements that were prohibited calls for strict scrutiny on the part of the Court and a correspondingly circumscribed national margin of appreciation with regard to the necessity of the restrictions (see VgT, cited above, § 71; and Murphy, cited above, § 67). 65. In this connection, the Court has also taken note of the Government's observations, made with reference to the Court's case-law under Article 3 of Protocol No. 1 (see paragraphs 44 and 50 above), arguing that the Contracting States enjoyed a wide margin of appreciation in striking a fair balance between, on the one hand, freedom of expression and, on the other hand, the need to place restrictions thereon in order to secure the free expression of the opinion of the people in the choice of the legislature. As already recognised in the Court's case-law (see references at paragraph 61 above), a lack of consensus between the States making up the Convention community with regard to the regulation of the right to vote and the right to stand for election may justify according them a wide margin of appreciation in this area.", "66. However, while it is true that the broadcasts at issue had been aired between 14 August and 13 September 2003 in the run-up to the local and regional elections that year, it should be noted that the advertising ban under section 3-1(3) of the Broadcasting Act was absolute and permanent and did not apply specifically to elections. In these circumstances, the Court does not find it appropriate in the instant case to attach much weight to the various justifications for allowing States a wide margin of appreciation with reference to Article 3 of Protocol No. 1. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the privileged position of free political speech under Article 10 of the Convention.", "67. The Court has further considered whether, going beyond the arguments drawn from Article 3 of Protocol No. 1, the differences between domestic systems with regard to television broadcasting of political advertising could warrant a wide margin of appreciation. According to the comparative law reports compiled by the EPRA, out of the 30 European countries examined, (1) in 13 a statutory ban on paid political advertising in broadcasting applied, (2) in 10 such advertising was permitted; (3) in 11 there were provisions for free airtime for political parties and candidates during election campaigns (five of these were among the 13 under item (1)); (4) in several countries there was no system of allocation of free airtime (see paragraph 24 above). In so far as this absence of European consensus could be viewed as emanating from different perceptions regarding what is “necessary” for the proper functioning of the “democratic” system in the respective States, the Court is prepared to accept that it speaks in favour of allowing a somewhat wider margin of appreciation than that normally accorded with respect to restrictions on political speech in relation to Article 10 of the Convention.", "68. The Court also takes note of the difference of opinion in the Supreme Court as to how much importance should be attached to the opinion of the legislature, i.e., the political majority at any given time, as to the scope of freedom of expression on political issues (see paragraph 18 above, compare paragraph 75 of the judgment quoted at paragraph 21). The applicants emphasised that the shifting political majority should not be left a wide margin of appreciation to decide on the limits of such speech. However, it is not for the Court to take a stance on such issues of national constitutional law, which fall to the Contracting States to solve within their own domestic legal systems. As stated above, its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken in the exercise of their power of discretion.", "69. It is against this background that the Court will examine the justifications for the disputed interference in this case; whether it was supported by relevant and sufficient reasons and was proportionate to the legitimate aim pursued, regard being had to the balance to be struck between the applicants' freedom of expression, on the one hand, and the reasons adduced by the Norwegian authorities for the prohibition of political advertising, on the other. 70. In this regard, the Court notes that the rationale for the statutory prohibition of broadcasting of political advertising on television was, as stated by the Supreme Court, that the use of such a form and medium of expression was likely to reduce the quality of political debate generally. In this way complex issues might easily be distorted and groups that were financially powerful would have greater opportunities for marketing their opinions than those that were not.", "Pluralism and quality were central considerations, as was the fact that it was the legislature which had addressed the relevant issues for the democratic process, the legislature being better placed than any other State organs to assess how best to achieve those objectives. The Government pointed out that the ban had been limited to political advertising on television owing to the powerful and pervasive impact of this type of medium. Moreover, the prohibition had contributed to limiting election campaign costs, to reducing participants' donor dependence and ensuring a level playing field in elections. It was aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to ensure that those who could afford it did not obtain an undesirable advantage through the possibility of using the most potent and pervasive medium. Also, it helped to preserve the political impartiality of television broadcasting.", "These are undoubtedly relevant reasons (see VgT, cited above, § 73). 71. However, the Court is not convinced that these objectives were sufficient to justify the interference complained of. 72. In the first place, there is nothing to suggest that the Pensioners Party fell within the category of parties or groups that were the primary targets of the disputed prohibition, namely those which, because of their relative financial strength, might have obtained an unfair advantage over those with less resources by being able to spend more on television advertising (see VgT, cited above, § 75).", "73. On the contrary, while the Pensioners Party belonged to a category for whose protection the ban was, in principle, intended, the Court, unlike the majority in the Supreme Court (see paragraph 62 of its judgment, quoted at paragraph 20 above), is not persuaded that the ban had the desired effect. In contrast to the major political parties, which were given a large amount of attention in edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to put its message across to the public through that medium. By being denied this possibility under the law, the Pensioners Party was at a disadvantage compared with major parties which had obtained edited broadcasting coverage, and this could not be offset by the possibility available to it to use other, less potent, media.", "74. The Court further notes that it has not been contended that the specific advertising at issue contained elements that were capable of lowering the quality of political debate (see VgT, cited above, § 76). 75. Moreover, as mentioned above, it does not appear that the advertising could give rise to sensitivities as to divisiveness or offensiveness, making a relaxation of the prohibition difficult. In this regard, as already stated, the case under consideration is distinguishable from that of Murphy, where it was such sensitivities that led the Court to accept that the filtering by a public authority, on a case-by-case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently, and that a blanket ban would generate less discomfort (§§ 76-77).", "In VgT, however, where there were no such sensitivities at stake and the issues were more akin to those in the present instance, the Court struck down the blanket ban on political advertising as applied in that case. 76. In these circumstances, the fact that the audio-visual media has a more immediate and powerful effect than other media (see Jersild, cited above, § 31), although an important consideration in the assessment of proportionality (see Murphy, cited above, § 69), could not justify the disputed prohibition and fine imposed in respect of the broadcasting of the political advertisements at issue (see VgT, cited above, § 74). 77. The view expounded by the respondent Government, supported by the third-party intervening Governments, that there was no viable alternative to a blanket ban must therefore be rejected.", "78. In sum, there was not, in the Court's view, a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition on political advertising and the means deployed to achieve that aim. The restriction which the prohibition and the imposition of the fine entailed on the applicants' exercise of their freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10, for the protection of the rights of others, notwithstanding the margin of appreciation available to the national authorities. Accordingly, there has been a violation of Article 10 of the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 80. The applicants submitted a claim for just satisfaction outside the time-limit fixed for this purpose. Accordingly, the Court considers that there is no call to award the applicants any sum. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Holds that there has been a violation of Article 10 of the Convention; 2. Holds that there is no call to award the applicants any sum by way of just satisfaction. Done in English, and notified in writing on 11 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Jebens is annexed to the judgment. C.L.R.", "S.N. TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY JUDGMENT 1 CONCURRING OPINION OF JUDGE JEBENS 1. I agree that the imposition of a fine on TV Vest because of its broadcasting of political advertisements for the Pensioners Party violated Article 10 of the Convention. My finding of a violation is, however, not based on the prohibition of political broadcasting on television as such, but on the particular context in which it was applied in the present case, namely the Pensioners Party's general lack of access to the medium of television broadcasting. 2.", "My starting point is that political speech is at the very centre of the right to freedom of expression, protected by Article 10 of the Convention. The Court's case-law confirms this, by leaving little room under Article 10 § 2 for the Contracting States to put restrictions on political speech (see, for instance, Lingens, cited in the judgment). However, in order to ensure that political elections reflect the opinion of the people, it may be necessary to impose some restrictions as to which means should be allowed for the transmission of political messages. The right to freedom of expression in Article 10 must therefore be considered in the light of the right to free elections protected by Article 3 of Protocol No. 1 to the Convention (see Bowman, cited in the judgment).", "3. On the basis of such considerations, I fail to see why restrictions on paid political advertisements could not be acceptable under Article 10, provided that political parties and interest groups are otherwise afforded reasonable access to the media. It should be noted that neither the Vgt case nor the Murphy case (both cited in the judgment), concerned advertisements for political parties. The fact that the Court reached different conclusions in the two cases illustrates the variety of situations in this field, which calls for individual solutions. It would therefore, in my opinion, seem to be of little value to compare the present case with either of those two cases with the aim of finding the right solution.", "The correctness of taking an individual approach with regard to political advertisements is confirmed by the Court's case-law; see, for instance, paragraph 75 of the Vgt judgment, where the Court stated that a ban on political advertisements might be compatible with Article 10 in certain situations, provided that it was based on grounds that met the requirements in paragraph 2 of Article 10. TV VEST AS & ROGALAND PENSJONISTPARTI v. NORWAY JUDGMENT 1 4. Turning to the present case, it should be noted firstly that the prohibition laid down in section 3-1(3) of the Broadcasting Act was limited to political advertising on television. The rationale for the prohibition was that such advertising was likely to reduce the quality of political debate by distorting complex issues, taking into account the powerful and pervasive impact of television. It thus transpires that the prohibition was meant to secure pluralism and quality in the political debate.", "Another important consideration was to prevent financially powerful groups from dominating the political forum, by being able to buy airtime on television which other, less powerful groups, could not afford. Furthermore, and in line with this, the prohibition was aimed at securing the political independence of the television broadcasters. 5. The reasons outlined above are in my view clearly relevant with respect to Article 10 § 2. Bearing in mind that the Contracting States should have a certain margin of appreciation when balancing the right to freedom of expression against the need to secure free elections, the prohibition on political advertising could not in itself be said to create a violation of Article 10 of the Convention.", "6. However, when assessing whether the above restriction met the requirement of being necessary in a democratic society in the sense of Article 10 § 2, a broader evaluation is called for. It should be noted in this respect that Norway, according to the survey by the ERPA (see paragraph 24 of the judgment) had failed to regulate party political broadcasts, unlike the majority of European States. As a consequence, it was for the broadcasters' editorial staff to decide whether to give political parties the possibility of presenting themselves to the electorate. I agree with the applicants that the lack of rules which could have secured political parties access to television is highly relevant when determining the scope of the State's margin of appreciation.", "7. Turning to the Pensioners Party's situation, it is important to note that, according to information provided after the public hearing, it was granted very sparse coverage on television prior to the local and regional elections in 2003. It is revealing that, while the Pensioners Party was mentioned several times on Norwegian television channels in connection with the legal action brought by TV Vest concerning the legality of the fine imposed for a breach of the ban on advertising, the party was given no coverage at all with respect to its politics. Nor were any of its members invited to political debates on television. Thus, the prohibition of political advertising on television prevented the Pensioners Party from availing itself of its only opportunity to have access to the most important forum for communication of ideas, and placed the party at a disadvantage, compared with the established political parties in Norway.", "8. This, furthermore, shows that the restriction on advertising not only interfered with the right to freedom of expression, but was also not in harmony with the need to secure pluralism in editorial coverage of political campaigns. I refer in this connection to “the obligation to cover electoral campaigns in a fair, balanced and impartial manner in the overall programme services of broadcasters” (see the Appendix to Recommendation No. R (99) 15 of the Committee of Ministers to member States, on measures concerning media coverage of election campaigns). 9.", "For the reasons explained above, I conclude that the restriction of the right to freedom of expression in the present case was not proportionate to the aims pursued. The interference was therefore not necessary in a democratic society, for which reason there has been a violation of Article 10." ]

[ "FOURTH SECTION CASE OF GRZYWACZEWSKI v. POLAND (Application no. 18364/06) JUDGMENT STRASBOURG 31 May 2012 FINAL 31/08/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grzywaczewski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: David Thór Björgvinsson, President,Lech Garlicki,Päivi Hirvelä,George Nicolaou,Ledi Bianku,Zdravka Kalaydjieva,Vincent A. De Gaetano, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 10 May 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 18364/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Zbigniew Grzywaczewski (“the applicant”), on 24 April 2006. 2. The applicant, who had been granted legal aid, was represented by Mr P. Sendecki, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. The applicant alleged that the medical care and treatment offered to him during his detention in Lublin Remand Centre and Zamość Prison had been inadequate in view of his diabetes. He also complained of overcrowding and poor living and sanitary conditions in the above‑mentioned detention facilities. 4. On 30 November 2006 the President of the Fourth Section decided to give notice of the application to the Government.", "It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Mr Zbigniew Grzywaczewski, is a Polish national who was born in 1957. He suffers from insulin-dependent diabetes, prostate cancer and mild cardiac disorders.", "He has been classified by the social security authorities as a person with a “mild-degree disability” (umiarkowany stopień inwalidztwa) making him fit to do only light physical work. A. The period of the applicant’s detention 6. On 25 January 2006 the applicant turned himself in to serve an outstanding sentence of imprisonment. From that day until 11 December 2008 he was in detention, except for the period from 24 to 27 December 2007 when he was at liberty on a short leave from prison (przepustka).", "During the relevant period the applicant was detained in a number of different facilities, namely Lublin Remand Centre, Zamość Prison and Hrubieszów and Rzeszów Prisons. B. The description of the conditions of the applicant’s detention 7. The parties’ statements relating to the conditions of the applicant’s detention are, to a large extent, contradictory. However, the Government’s submissions on the case are limited to the applicant’s detention prior to his transfer from Zamość Prison on 6 February 2007.", "The Government did not make any comments in relation to the period after that date. 1. First term in Lublin Remand Centre (a) Uncontested facts 8. From 25 January until 3 March 2006 the applicant was detained in Lublin Remand Centre. He was initially held in cell no.", "22 in wing IV. Two weeks later he was transferred to cell no. 22 in wing III. 9. The official statistics published by the Prison Service (Służba Więzienna) reveal that at the relevant time the overcrowding (the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility, which, in turn, is calculated on the basis of the standard of 3 square metres (m²) of cell floor space per prisoner provided for in Polish law) in Lublin Remand Centre peaked at 22.5 %.", "(b) Facts in dispute (i) The Government 10. The Government submitted that the applicant’s cell in wing IV measured 32 m² and could hold from 18 to 29 persons (from 1.7 to 1.1 m² of cell space per person). His cell in wing III measured over 21 m² and could hold from 7 to 10 people (from 3 to 2.1 m² of cell space per person). The Government did not specify, however, the actual occupancy rate because, as they submitted, Lublin Remand Centre had not kept any register of detainees’ allocation. 11.", "The Government submitted that the applicant’s cells in Lublin Remand Centre had been equipped in compliance with the internal regulations and had been adequately lit and ventilated. They also noted that the applicant had had an unlimited access to cold water and that he had been allowed to have one hot shower per week. The toilet annex inside each cell offered sufficient intimacy. Finally, the applicant was allowed to spend several hours outside his cell, either participating in social and cultural activities or staying in a chapel. (ii) The applicant 12.", "The applicant submitted that cell no. 22 in wing IV had originally been designed for 14 persons but, in fact, it had been shared by 28 prisoners (1.1 m² of cell space per person). His cell in wing III measured 15 m² and was shared by 10 persons (1.5 m² of cell space per person). 13. The applicant claimed that Lublin Remand Centre had been so severely overcrowded that he had had no room to sleep or to have his meals.", "For example, in cell 22 in wing IV there were 18 beds and an unspecified number of mattresses spread on the floor. There was no private space. Consequently, the applicant had no choice but to administer his insulin injections in front of his fellow inmates. The applicant had limited access to the toilet inside the cell because it was continuously occupied by other cellmates. The cells were not ventilated and there was a constant foul odour.", "The conditions of hygiene maintenance were insufficient. The applicant did not specify how many times per week he could have a bath or a shower. He submitted, however, that the shower-room had measured 12 m² and that it had been used by 20 persons at a time. Detainees were allowed to stay there for no longer than five minutes. There was no hot water.", "The applicant maintained that in Lublin Remand Centre he had been entitled only to a one‑hour period of outdoor exercise. 14. In the applicant’s submission the conditions in Lublin Remand Centre as described above, had been aggravated by the fact that he had been mocked and laughed at by the guards, while his complaints to the remand centre’s administration had been ignored or had not brought the desired effect. 2. Zamość Prison (a) Uncontested facts 15.", "From 8 August 2006 until 6 February 2007 the applicant was detained in Zamość Prison which is listed as a semi-open detention facility. 16. According to the official statistics published by the Prison Service the overcrowding in Zamość Prison was at the lowest at 30% in August and September 2006, increased to 38 and 39% in November and December 2006 respectively, peaked at 45% in January 2007 and dropped to 38% in February 2007. (b) Facts in dispute (i) The Government 17. The Government submitted that the applicant had been consecutively detained in cells no.", "11, 5, 22 and 15. The first two cells measured over 30 m² and were shared by 12 to 14 persons (from 2.5 to 2.1 m² of cell space per person). Cell no. 22 was located in the special-care wing. It measured over 12 m² and was occupied by 4 prisoners (3 m² of cell space per person).", "Cell no. 15 was in the prison’s hospital wing. It measured over 14 m² and was occupied by 3 persons (4.6 m² of cell space per person). In the Government’s submission, the cells in question were sufficiently lit and ventilated. They were adequately furnished and equipped.", "The toilets and shower rooms were accessible from the corridor. 18. The Government also submitted that Zamość Prison offered to all prisoners a wide variety of social and sports activities, as well as language courses and workshops. The applicant followed individual rehabilitation programme for alcoholics and, together with his wife, a family therapy. (ii) The applicant 19.", "The applicant did not provide any details regarding the occupancy rate or the size of his cells in Zamość Prison. He submitted, however, that all his cells, except cell no. 15, had been overcrowded. He also claimed that on 2 February 2007 a mentally unstable prisoner had been assigned to his cell. That had caused a lot of stress to the applicant and posed a real danger to his life and health.", "20. The applicant noted that during the day the prisoners in Zamość Prison had been free to walk around the prison building. They had also had daily access to the prison shop and the shower room. The applicant’s meetings with his wife took place in a spacious room. 3.", "First term in Hrubieszów Prison 21. From 6 February 2007 until 3 January 2008 the applicant was detained in Hrubieszów Prison. From 24 until 27 December 2007, however, he was at liberty as he had been granted a short leave from prison. 22. Hrubieszów Prison was listed at the relevant time as a semi-open detention facility suitable for incarceration of diabetics.", "23. According to the official Prison Service’s statistics the overcrowding in Hrubieszów Prison ranged at the relevant time from 23 to 27%. 24. The applicant submitted that he was initially placed in cell no. 203 in wing II.", "The cell in question measured 13 m² and was shared by 6 prisoners, including the applicant (2.1 m² of cell space per person). 25. On 21 March 2007 the applicant was assigned to cell no. 110 or 111 in wing I. That cell also measured 13 m².", "It was shared by 6 prisoners, including the applicant, another diabetic and four healthy persons (2.1 m² of cell space per person). The applicant submitted detailed calculations of the size of all equipment and furniture inside his cell and concluded that the actual living space of his cell was no more than 5 m². 26. In the applicant’s submission the living and sanitary conditions in Hrubieszów Prison were appalling. The prison was seriously overcrowded and the building was devastated.", "The applicant claimed that, during an unspecified period, prisoners had been confined to their cells 23 hours per day. Subsequently, as of April 2007, the prison cells were left open from 10 a.m. until noon and then, from 2 to 5 p.m. However, on 5 November 2007 renovation works started in prison and the cells were opened only from 3 to 5 p.m. The prisoners were allowed to walk around the prison building and stay outside their cells; however, the corridors and the room where prisoners met with their relatives were cramped and noisy. Because of the existing overcrowding queues to the prison pay phone were long, which made it difficult for the applicant to maintain regular contact with his family.", "27. The wash room, which was in a very poor condition, was located in a separate building at a distance from the applicant’s wing. The prisoners had to walk in the open to and from the shower room in all weather conditions. The prisoners had little time to dry themselves and to get properly dressed after taking a shower. Because of that they were particularly exposed to catching a cold while walking back to their quarters.", "4. Second term in Lublin Remand Centre 28. From 8 until 10 January 2008 the applicant was committed to Lublin Remand Centre and assigned to cell no. 17 in wing IV. He was allowed to have a one-hour period of outdoor exercise per day.", "In the applicant’s submission, the living and sanitary conditions in the remand centre had not changed since his previous stay there. 29. According to the official Prison Service’s statistics the overcrowding in Lublin Remand Centre was at 11%. 5. Rzeszów Prison 30.", "From 10 until 31 January 2008 the applicant was detained in Rzeszów Prison. He was detained in cell no. 132 in wing I. The applicant submitted that he had slept on a mattress spread on the floor and that he had had no access to a doctor. He was allowed to make one phone call every eight days.", "The applicant went on hunger strike because, as he claimed, all his requests to be transferred closer to his home had been dismissed or ignored. 31. According to the official Prison Service’s statistics the overcrowding in Rzeszów Prison was at the relevant time at 18%. 6. Second term in Hrubieszów Prison 32.", "From 31 January until 11 December 2008 the applicant was detained in Hrubieszów Prison. He was released home on the latter date. 33. It appears that the applicant was assigned to cell no. 527 wing V. In his submission, the living and sanitary conditions in prison had not changed since his last stay there.", "The applicant’s cell was overcrowded and shabby. He was confined inside the cell 23 hours per day. He was entitled to one five-minute phone call every eight days. 34. According to the official Prison Service’s statistics the overcrowding in Hrubieszów Prison ranged from 20 to 26% between January and May, was at the lowest 8% in June and October, oscillated around 9-11% from July to September and increased to 15% in December 2008.", "C. The applicant’s medical treatment in detention 35. The applicant suffers from diabetes, prostate cancer and some cardiac disorders. In addition, during his imprisonment, he had been infected with dermatophytosis. He submitted that the medical care available within the penitentiary system had been insufficient. 36.", "On his detention in Lublin Remand Centre he informed the authorities of his diabetes; however, as the Government submitted, he had initially refused to go on a special diet. Only after experiencing some health problems the applicant agreed to be put on a diet for diabetics. The Government submitted that in the initial phase of his detention in Lublin Remand Centre the applicant had been examined by a doctor and had undergone a series of necessary medical tests. On the other hand, he had never expressed a wish to have his sugar level tested on a regular basis and had never asked for a glucometer. 37.", "In Zamość Prison the applicant was provided with medicine for diabetes. Between 7 August 2006 and 6 February 2007 he went 36 times to the doctor, including a general practitioner, a neurologist and an ophthalmologist. In this regard, the applicant submitted that the doctor practising in Zamość Prison had been a retired ophthalmologist without any general practice experience or any knowledge of the applicant’s particular disorders. Furthermore, the applicant maintained that he had not been supplied with a glucometer and that his sugar level had never been tested. 38.", "The applicant claimed that during his detention in Rzeszów Prison in January 2008 he had had no access to a doctor whatsoever. 39. With respect to Hrubieszów Prison the applicant submitted that even though the prison was listed as a facility suitable for incarceration of diabetics, the medical attention he had received there had been much worse than in the other detention establishments. He stressed that virtually no medical care had been provided to him there. His sugar level was never tested during his first detention in Hrubieszów Prison.", "It was tested twice during his second detention there. In addition, the applicant claimed that he had not received any medication or diet for diabetics. 40. Lastly, the applicant made a general statement that the medical assistance provided to him in detention had not been sufficient. Despite his serious health condition he had been treated by the medical staff as if he suffered from a common ailment, such as a cold.", "Throughout the entire period of his detention the applicant administered his insulin injections without the assistance of a third person. He did so inside the cell where he lacked privacy and adequate sanitary conditions. That placed him in an awkward position vis‑à‑vis his fellow inmates. Due to the rapid changes of his sugar level he lived with the constant stress and fear of losing consciousness whenever he ran out of snacks. His medical condition worsened during each move to a new detention facility.", "D. The applicant’s actions concerning the living conditions and medical care provided to him in detention 41. The applicant filed numerous complaints with the administration of Lublin Remand Centre, Zamość Prison, the penitentiary authorities and the relevant prosecutors in connection with the conditions of his imprisonment and the medical care provided. He submitted that many of his complaints had remained without a reply. 42. On 29 January, 12 and 15 February 2006 the applicant filed complaints about the inadequate medical care in Lublin Remand Centre.", "The Government, without providing any details, submitted that those complaints had been thoroughly examined and that one of them (concerning the sleeping area) had been considered justified and the applicant had been instructed about a possibility to file a civil action for compensation. 43. On 17 February 2006 the Governor of Lublin Remand Centre (Dyrektor) responded to the applicant’s complaint about the insufficient medical care. He established that the applicant had had a medical check-up by an in-house doctor on the day of his arrival. It was further stated that the applicant himself had refused, in writing, to be put on a special diet and had never expressed a wish to have his sugar level tested.", "44. In a letter of 5 May 2006 the Governor of Lublin Remand Centre found the applicant’s new complaint about medical care to be manifestly ill‑founded. He stated that the applicant had been put on a diet for diabetics as soon as he had asked for it. Moreover, the applicant was examined by an in-house doctor and prescribed new medicines. The applicant was also informed that a medical consultation by a doctor of his choice outside the penitentiary system could be arranged at his own expense.", "45. On 26 March 2007 the Governor of Zamość Prison informed the applicant that his complaint about different aspects of his detention in that establishment had been considered ill-founded. It was noted that the applicant had been assigned to cell no.15 with a bathroom and a toilet. He had constant access to hot water and he shared the cell with one and, at times, with two inmates. It was also stressed that the applicant was supplied on a regular basis with insulin, syringes and needles.", "He had been seen on many occasions by an internist, a neurologist, a psychiatrist and an ophthalmologist. During the relevant time, the applicant did not raise any objection as to the adequacy of the medical care and treatment provided to him. He was administered the necessary medicines and he administered insulin injections himself whenever he considered it necessary. That was a typical course of treatment for diabetes. Moreover, the Governor pointed to the fact that the applicant had himself requested to be transferred to Zamość Prison because he had wished to complete a therapy for alcoholics there.", "Both Zamość and Hrubieszów Prisons were semi-open facilities and the same restrictions applied to the applicant. 46. The applicant made numerous requests to the penitentiary court to be granted a short leave from prison. He was released once in 2007 for three days. He also complained about his frequent transfers between different cells or different detention facilities and, lately, of the conditions of his detention in Hrubieszów Prison.", "The applicant claimed that the authorities had found his complaints concerning Hrubieszów Prison ill-founded in the light of the fact that that prison was listed as a facility suitable for the incarceration of diabetics. 47. The applicant did not bring a civil action in tort to seek compensation for the alleged infringement of his personal rights on account of overcrowding and inadequate conditions and the inadequate medical care provided to him during his detention. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Conditions of detention 48. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no.", "52070/08) on 12 October 2010 (see §§ 25-54). B. Medical care in prison and detention of ill prisoners 49. The relevant domestic law and practice concerning medical care in detention facilities are set out in the Court’s judgment in the case of Kaprykowski v. Poland, no. 23052/05, §§ 36 -39, 3 February 2009.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 50. The applicant complained under Article 3 of the Convention that the medical care provided to him within the penitentiary system had been inadequate and that the conditions of his detention had been very poor and had failed in particular to meet the standard required for persons in his state of health. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 51. The Government raised a preliminary objection, arguing that the applicant had not exhausted the domestic remedies available to him.", "52. In their initial observations the Government formulated this objection in the same way as they did in the cases of Sławomir Musiał v. Poland (no. 28300/06, §§ 67-69, 20 January 2009) and Orchowski v. Poland (no. 17885/04, §§ 95-98, 22 October 2009). 53.", "In particular, they stressed that before lodging his Article 3 application with the Court the applicant should have: (1) made an application to the Constitutional Court under Article 191, read in conjunction with Article 79 of the Constitution, asking for the 2006 Ordinance to be declared unconstitutional; (2) brought a civil action seeking compensation for the infringement of his personal rights, namely his dignity and health, under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code; and (3) used remedies provided by the Code of Execution of Criminal Sentences, such as an appeal against any unlawful decision issued by the prison administration or a complaint to the relevant penitentiary judge about being placed in a particular cell in prison, or a complaint about prison conditions to the authorities responsible for the execution of criminal sentences or to the Ombudsman. 54. In their subsequent submissions, the Government noted that on 11 December 2008 the applicant had been released from prison. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and the applicant should bring a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation. 55.", "In that regard the Government relied, in particular, on the Orchowski judgment, reiterating that the Court, having regard to the principle of subsidiarity, had held that in cases where the alleged violation of Article 3 no longer continued and could not be eliminated with retrospective effect, the only means of redress for the applicant was pecuniary compensation. 56. In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention. 57. The applicant in general disagreed with the above arguments and maintained that the remedies suggested by the Government could not be considered “effective” for the purposes of Article 35 § 1 of the Convention.", "He also submitted that he had lodged formal complaints with the penitentiary authorities on the basis of the Code of Execution of Criminal Sentences which had been either rejected or left without examination. 58. The Court observes that, in principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Orchowski cited above, § 109, and Demopoulos and Others v. Turkey [GC], (dec.) no. 46113/99, ECHR 2010-..., § 87). However, as the Court has held in its leading decision in the Łatak case (cited above, § 79) and on many other occasions prior to that decision, this rule is subject to exceptions which may be justified by the particular circumstances of each case (see Demopoulos and Others, ibid., with further references).", "Among such exceptions there are certainly situations where, following a pilot judgment on the merits in which the Court has found a systemic violation of the Convention, the respondent State makes available a remedy to redress at domestic level grievances of similarly situated persons (see Demopoulos and Others, cited above, §§ 87-88; Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 191-93, ECHR 2004-V; and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 25-26 and 33-44, 23 September 2010). 59. To that effect, in the lead inadmissibility decision in the case of Łatak v. Poland (cited above), the Court has expressly held that the above‑mentioned exception applies to subsequent applications concerning conditions of detention filed with the Court which have not yet been declared admissible and that it is appropriate to assess the adequacy of the remedy relied on by the Government in the light of the present-day situation.", "60. In so doing, the Court had regard to the fact that on the date of the adoption of its decision there were 271 cases pending before it where the applicants had raised complaints similar in substance, alleging a violation of Article 3 in that at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells (ibid. § 84 and § 75 respectively). 61. Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in June 2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid.", "§ 85 and § 76 respectively). 62. In the present case the applicant was deprived of liberty from 25 January 2006 until 11 December 2008, with a three-day interruption, between 24 and 27 December 2007, when he was at liberty on a short leave from prison (see paragraph 6 above). 63. The Court notes that the applicant’s complaint under Article 3 of the Convention is two-fold.", "The applicant, who suffers from insulin-dependent diabetes, prostate cancer and various cardiac disorders, complained that the medical care provided to him within the penitentiary system had been inadequate. In parallel, he complained about overcrowding and the resultant poor living and sanitary conditions of his detention, failing in particular to meet the standard required for persons in his state of health. 64. The Court has already held, in a case which was brought by a mentally ill detainee who, like the applicant in the instant case, complained of inadequate medical care combined with prison overcrowding and inadequate living conditions, that only a remedy able to address the applicant’s complaint in its entirety and not merely its selected aspects, could realistically redress his situation (see Sławomir Musiał v. Poland, no. 28300/06, § 80, ECHR 2009-... (extracts)).", "65. In any event, it must be noted that the applicant in the present case filed numerous complaints with the penitentiary authorities in connection with the conditions of his imprisonment and the medical care provided. He also applied a number of times to be released from prison on health grounds (see paragraphs 42‑47 above). By taking those actions the applicant had sufficiently drawn the attention of the penitentiary authorities to the question of the compatibility of his living conditions and medical care in prison with the state of his health. 66.", "Moreover, the situation giving rise to the alleged violation of Article 3 ended on 11 December 2008 when the applicant was released from Hrubieszów Prison. The Court considers that, since the relevant civil action under Articles 24 and 448 of the Civil Code by which, as the Government claimed, the applicant could seek compensation for the infringement of his personal rights, including his dignity and health, is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of the civil remedy in question. 67. In addition, the Court reiterates that in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see Orchowski, cited above, § 96 and Norbert Sikorski, cited above, §§ 100-101) it has already held that the findings made by the Constitutional Court and by this Court that overcrowding in Polish detention facilities was of a structural nature, “undermined the effectiveness of any domestic remedy available, making them theoretical and illusory and incapable of providing redress in respect of the applicant’s complaint” at the time when he lodged the present application with the Court (ibid. § 111 and § 121 respectively).", "This conclusion equally applies to the present case in so far as it concerns the applicant’s detention which lasted from January 2006 until December 2008, especially given that the Government and the penitentiary authorities explicitly acknowledged the existence and the systemic nature of the problem of overcrowding in Polish detention facilities at the relevant time (ibid. § 146 and § 148 respectively). 68. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies. 69.", "The Court also considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ submissions 70. The applicant complained that he had not received adequate medical treatment and care during his detention. He also alleged that the living and sanitary conditions in each detention facility in which he had been held from 25 January 2006 until his release on 11 December 2008 had been inadequate for a healthy person and even more so for someone like him, who suffered from diabetes and other serious health ailments. In particular, the applicant complained that his diabetes had not been monitored because he had had no access to specialised medical care and his sugar level had hardly ever been tested. Moreover, the applicant complained that he had not had any privacy or adequate sanitary conditions when he wished to administer his daily insulin injections.", "Lastly, the applicant alleged that because of the overcrowding and poor sanitary conditions in his detention facilities, his frequent transfers between different cells or prisons and limitations on his contact with his wife he had been exposed to situations which had added to his stress and the deterioration of his health. 71. The Government argued that during his detention the applicant had not suffered inhuman or degrading treatment which had attained the minimum level of severity within the meaning of Article 3 of the Convention. 72. The applicant’s health and life were not in danger as he received regular specialised medical care and treatment.", "In particular, throughout his detention the applicant was administered all necessary drugs for diabetes and between August 2006 and February 2007 he had seen a general practitioner, a neurologist and an ophthalmologist on thirty-six occasions. 73. Moreover, the Government submitted that despite the overcrowding the prison authorities, taking into account the applicant’s special needs, had made efforts to secure to him the best possible conditions of detention. As a result, the applicant had been detained in a slightly smaller cell than prescribed by the domestic law only for a transitional period. The Government stressed, however, that Zamość Prison was a semi-open detention facility and the applicant had been free to leave his cell to use the toilets and showers which were located outside.", "2. The Court’s assessment 74. The case raises the issue of the compatibility of the applicant’s state of health with the conditions of his detention in Lublin Remand Centre and Zamość, Hrubieszów and Rzeszów Prisons and the adequacy of the medical care provided to him. The Court must also answer the question whether the applicant’s situation attained the required minimum level of severity to fall within the ambit of Article 3 of the Convention. 75.", "A summary of the general principles concerning the examination of medical care and conditions of detention under Article 3 may be found in the Court’s recent judgments in Sławomir Musiał v. Poland (no. 28300/06, §§ 85-88, ECHR 2009-...(extracts)) and Orchowski v. Poland (cited above, §§ 119-229). 76. The Court notes that the parties have disputed certain circumstances pertaining to the general conditions of the applicant’s detention at Lublin Remand Centre and Zamość Prison in the period from 25 January 2006 until 6 February 2007. The Government did not make any comments as regards the remaining period of the applicant’s detention, namely from the date on which notice of the application had been given to the parties until the applicant’s release on 11 December 2008.", "77. The Court considers, nevertheless, that it can make its assessment of the case relying on the parties’ submissions, the official statistics published by the Prison Service and on the recent findings made by the Polish Constitutional Court and by this Court. 78. The Court has already found in its two pilot judgments in the cases of Orchowski v. Poland and Norbert Sikorski v. Poland that, for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres had revealed a structural problem consisting of “a practice that [was] incompatible with the Convention” (see Orchowski, cited above § 151 and Norbert Sikorski, cited above, §§ 155-156). 79.", "This finding is confirmed in the instant case by the official statistics of the Prison Service, which show that each of the applicant’s detention facilities was at the relevant time overcrowded with the occupancy rates ranging from 108 to 145% (see paragraphs 9,16, 23, 29, 31 and 34 above). 80. As to whether the applicant himself was affected by the problem of overcrowding, the Court makes the following observations. 81. The Government did not contest the applicant’s submission that during a two-week period in the course of his first detention in Lublin Remand Centre, his cell in wing IV, measuring 32 m², had been occupied by 28 prisoners.", "That resulted in a little over 1 m² of floor space per person (see paragraphs 10 and 12 above). 82. In the subsequent three weeks’ period, the applicant was detained with 9 other prisoners in a cell in wing III which measured 21 m², according to the Government, or 15 m², according to the applicant. Even relying on the Government’s submissions, the space per person in that cell was 2.1 m² (see paragraphs 10 and 12 above). 83.", "The Court notes that such severe overcrowding must have resulted in further hardship for the applicant, such as reduced accessibility to the toilet, poor air circulation and, most importantly, inconvenient sleeping arrangements. 84. In connection with the latter element, the Court is struck by the fact that in cell no. 22, nearly one third of the inmates had to sleep on mattresses spread on the floor, impeding movement in the cell (see paragraph 13 above). Irrespective of whether or not the applicant himself had to sleep on the floor, this arrangement was clearly a source of aggravated nuisance to him and the other inmates.", "85. In view of the parties’ partly conflicting submissions and the vagueness of the remainder of the Government’s comments regarding the uncontested high overcrowding rates in Lublin Remand Centre, the Court is not convinced that the applicant had access to activities offering social interaction and stimulation outside his cell. Conversely, the Court considers established that the applicant had a one-hour period of outdoor exercise per day and one cold or hot shower per week, possibly lasting a very short time and in a cramped shower room (see paragraphs 11 and 13 above). 86. As regards Zamość Prison, where the applicant was held for six months, the Court takes note of the Government and the applicant’s own submissions that the ventilation, lighting, conditions of hygiene, opportunities for social interaction and a break from prison routine were good (see paragraphs 18 and 20 above).", "The Court observes, nonetheless, that even in that facility, with the exception of the hospital cell no. 15, the domestic minimum standard of cell space per prisoner was either not met or barely met (see paragraph 17 above). 87. The Court will now examine the conditions of the applicant’s subsequent detention. It must be noted that the Government did not make any submissions in this connection.", "88. For eleven months, from 6 February 2007 until 3 January 2008 and for an additional ten and a half months, from 31 January until 11 December 2008, the applicant was detained in Hrubieszów Prison. 89. In the applicant’s submission, during his first and second detention there the floor space of his cells was 2.1 m² per person. Moreover, the toilet annex, equipment and furniture inside the cells significantly reduced the actual living space in the cells (see paragraphs 25 and 33 above).", "90. The official statistics of the Prison Service reveal that the average rate of overcrowding in Hrubieszów Prison ranged between 23 and 27%, during the applicant’s first detention and between 8 and 26%, during his second stay there (see paragraphs 23 and 34 above). 91. The applicant also complained of other hardships during his detention in Hrubieszów Prison, namely the dreadful technical condition of the prison, the cramped and noisy visiting-rooms, queues to the pay-phone and the fact that he had to walk in the open to and from the shower-room in all weather conditions (see paragraphs 26 and 27 above). 92.", "The Court observes that the nuisance resulting from overcrowding, which undoubtedly existed in Hrubieszów Prison, and the prison’s poor infrastructure were alleviated to some extent by the degree of freedom of movement enjoyed by the applicant during his first detention in the semi‑open wing. The applicant submitted that during an unspecified period he had been allowed to remain outside his cell for five hours a day. On the other hand, during certain periods his cells were opened only for two hours in the afternoon or locked for 23 hours a day (see paragraph 26 above). It also appears that during his second detention in Hrubieszów, the applicant did not enjoy any freedom of movement outside his cell and was allowed to have only a one-hour period of outdoor exercise per day (see paragraph 33 above). 93.", "In this regard the Court considers that the overcrowding, the prison’s infrastructure and the degree of the applicant’s freedom of movement in Hrubieszów Prison were substantially worse than those established by the Court in the Valašinas case (Valašinas v. Lithuania, no. 44558/98, ECHR 2001‑VIII), where no violation of Article 3 was found inter alia in view of the fact that the applicant was allocated at different times approximately 5, 3.2 and 2.7 m² of space in the dormitory and enjoyed considerable freedom of movement from wake-up time at 6.30 a.m. to lock-in at 10.30 p.m. within the whole prison area, consisting of a separate dormitory, a leisure room, a kitchen, sanitation areas and an open courtyard (Valašinas, cited above, § 103). 94. Lastly, the Court notes that during his second detention in Lublin Remand Centre overcrowding reached 11% and the applicant was confined to his cell for 23 hours a day (see paragraphs 28 and 29 above). The Government did not provide any information with respect to this period of the applicant’s detention.", "Nor did they contest the applicant’s submission that when he had been detained for 20 days in Rzeszów Prison he had slept on a mattress spread on the floor. The official statistics reveal that overcrowding in Rzeszów Prison was at the relevant time at 18% (see paragraphs 30 and 31 above). 95. As already noted in the Orchowski judgment, the Polish Constitutional Court found in its judgment of 26 May 2008 that a person could not be afforded humane treatment in a prison cell in which individual living space was less than 3 m² (Article 41 § 4 of the Constitution) and that such overcrowding as had existed in Polish prisons could in itself be qualified as inhuman and degrading treatment (Article 40 of the Constitution) (Orchowski, cited above, § 123). The Court, mindful of the principle of subsidiarity, found that the above‑mentioned ruling of the Constitutional Court could constitute a basic criterion in the Court’s assessment of whether overcrowding in Polish detention facilities breached the requirements of Article 3 of the Convention.", "In consequence, all situations in which a detainee was deprived of a minimum of 3 m² of personal space inside his or her cell, would be regarded as creating a strong indication that Article 3 of the Convention had been violated. 96. The second limb of the applicant’s Article 3 complaint relates to the adequacy of his medical care in prison. 97. The Court notes that during his detention the applicant undeniably suffered from insulin-dependent diabetes, prostate cancer and mild cardiac disorders.", "The case materials, however, reveal that the applicant’s ailments, although chronic, were at no stage life threatening (see paragraph 5 above). 98. Moreover, it does not transpire from the documents submitted that the applicant’s health deteriorated during his detention as a result of either the conditions of his detention or any negligence on the part of the prison medical services. Likewise, there is no indication that his state of health deteriorated as a result of the inadequacy of the available medical care. 99.", "It is clear that the applicant was provided, throughout the entire period of his detention, with insulin, needles and syringes (see paragraphs 13, 40 and 45 above). When it was considered necessary, he was administered additional medicine for diabetes (see paragraphs 37 and 44 above). A special diet for diabetics was made available to the applicant in Lublin Remand Centre (see paragraphs 36, 43 and 44 above) and, as it appears, despite the applicant’s submission to the contrary, also in Zamość and Hrubieszów Prisons (see paragraphs 39, 45 and 46 above). The applicant’s complaints about his poor health were followed-up by medical examinations and consultations. At the beginning of his detention in Lublin Remand Centre, he was examined by a doctor and underwent a series of medical tests (see paragraph 36 above).", "During a period of six months in the course of his detention in Zamość Prison he consulted different doctors on 36 occasions (see paragraph 37 above). For an unspecified period he was assigned to cells in a hospital and to a special-care wing in Zamość Prison (see paragraph 17 above). 100. It is a matter of regret that the prison medical services had failed to carry out routine tests of the applicant’s sugar level and to provide him with a glucometer. 101.", "On the other hand, the Court accepts that diabetes patients are expected to administer their own insulin injections in their home environment without the assistance of a third person. The fact that the applicant had to administer his injections inside the cell where he lacked privacy and adequate sanitary conditions must have given rise to considerable anxiety on his part and must have placed him in a position of inferiority vis-à-vis other prisoners. 102. Assessing the facts of the case as a whole, having regard in particular to the cumulative effects of the overcrowding and inappropriate living conditions provided to the applicant during his detention and the fact that, because of his state of health, the applicant was in a vulnerable position vis-à-vis other prisoners, the Court considers that the nature, duration and severity of the ill-treatment to which the applicant was subjected are sufficient to be qualified as inhuman and degrading treatment. 103.", "There has accordingly been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 104. With regard to the issue of overcrowding seen from the standpoint of the applicant’s right to respect for his physical and mental integrity or his right to privacy and the protection of his private space, the Court considered it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 8 of the Convention, which in its relevant part reads as follows: “1. Everyone has the right to respect for his private ... life ... 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 105. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 106. However, having found a violation of Article 3, the Court considers that no separate issue arises under Article 8 of the Convention with regard to the conditions of the applicant’s detention and the medical treatment he received. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 107. 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 108. The applicant claimed 250,000 Polish zlotys (PLN) in respect of non-pecuniary damage. He did not allege any pecuniary damage.", "109. The Government contested the applicant’s claim as exorbitant. 110. Deciding on an equitable basis, the Court awards the applicant 6,000 euros (EUR) in respect of non‑pecuniary damage. B.", "Costs and expenses 111. The applicant claimed no costs and expenses, either for the Convention proceedings or for any proceedings before the domestic courts or authorities. C. Default interest 112. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there is no need to examine separately the complaint under Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 31 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyDavid Thór BjörgvinssonRegistrarPresident²" ]

[ "SECOND SECTION CASE OF DURSUN v. TURKEY (Application no. 17765/02) JUDGMENT STRASBOURG 3 May 2007 FINAL 03/08/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dursun v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrsF. Tulkens, President,MrA.B.", "Baka,MrI. Cabral Barreto,MrR. Türmen,MrM. Ugrekhelidze,MrsA. Mularoni,MsD.", "Jočienė, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 3 April 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 17765/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Ali Dursun (“the applicant”), on 18 February 2002. 2. The applicant was represented by Mrs F. Karakaş Doğan, a lawyer practising in İstanbul.", "The Turkish Government (“the Government”) did not designate an Agent for the purpose of the proceedings before the Court. 3. On 3 March 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1969 and lives in İstanbul. 5. On 18 July 1992 the applicant was arrested and taken into custody by police officers at the İstanbul Security Directorate on suspicion of membership of an illegal organisation. 6. On 3 August 1992 the applicant was brought before the public prosecutor at the İstanbul State Security Court.", "On the same day, he was also brought before a judge at the İstanbul State Security Court who ordered his remand in custody. 7. On 30 September 1992 the public prosecutor at the İstanbul State Security Court filed an indictment against the applicant and sixteen other co-accused and requested the applicant's conviction under Article 125 of the Criminal Code for his activities aimed at breaking up the unity of the State and removing part of the national territory from the State's control. 8. The first hearing, held before the İstanbul State Security Court on 23 October 1992, in the applicant's absence, was taken up with procedural matters, such as the measures to be taken for securing the presence of the accused.", "9. Between 23 October 1992 and 11 April 2003, the İstanbul State Security Court held hearings at regular intervals. On 26 November 1992 the first-instance court decided to join another case against the applicant to the proceedings. It further decided to join to the proceedings against the applicant several other cases brought against other persons who were also accused of membership of the same organisation. At the end of each hearing, the İstanbul State Security Court considered releasing the applicant pending trial both ex officio as well as upon his requests.", "At each hearing, the court, taking into account the content of the case file and the state of the evidence, decided to prolong the applicant's remand in custody. 10. On 11 April 2003 the İstanbul State Security Court convicted the applicant as charged and sentenced him to life imprisonment. 11. On 7 June 2004 the Court of Cassation quashed the judgment of the first instance court.", "12. Subsequent to promulgation of Law no. 5190 on 16 June 2004, which abolished the State Security Courts, the İstanbul Assize Court acquired jurisdiction over the applicant's case. 13. On 30 December 2004 the İstanbul Assize Court released the applicant pending trial.", "14. According to the information available in the file, the case is apparently still pending on the date on which the present judgment was adopted. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 3, 4 AND 5, ARTICLE 6 § 2 AND ARTICLE 13 OF THE CONVENTION 15. The applicant complained that the length of his remand in custody was unreasonably long, and that his requests for release pending trial received no serious consideration by the first-instance court.", "He invokes Articles 5 §§ 3, 4 and 5, 6 § 2 and 13 of the Convention. 16. The Court considers that this complaint should be examined from the standpoint of 5 § 3 alone, which reads: “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 17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 18. The Government contended that the domestic authorities displayed diligence when considering the applicant's requests for release pending trial.", "Moreover, they claimed that the seriousness of the crime and the special circumstances of the case justified his continued detention on remand. 19. The applicant maintained his allegations. 20. The Court reiterates that it falls in the first place to the domestic judicial authorities to ensure that, in a given case, the detention of an accused person pending trial does not exceed a reasonable time.", "To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions on the applications for release. It is primarily on the basis of the reasons given in these decisions, and of the established facts mentioned by the applicants in their appeals, that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see Sevgin and İnce v. Turkey, no. 46262/99, § 61, 20 September 2005). 21. The persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the validity of the continued detention but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty (see, among other authorities, Ilijkov v. Bulgaria, no.", "33977/96, § 77, 26 July 2001, and Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV). 22. In the instant case, the Court notes that there were two periods of pre-trial detention. The first period began on 18 July 1992 with the applicant's arrest and ended on 11 April 2003, the date of the judgment of the İstanbul Assize Court.", "From that point on, and until the Court of Cassation's decision of 7 June 2004, the applicant was detained “after conviction by a competent court”, which falls within the scope of Article 5 § 1 (a) of the Convention. The second period began on 7 June 2004 and ended on 30 December 2004 when the applicant was released pending trial. It thus lasted approximately eleven years and three months in total (see, in particular, Solmaz v. Turkey[1], no. 27561/02, §§ 23-36, 16 January 2007). During this time, the first-instance court considered the applicant's continued detention at the end of each hearing, either on its own motion or upon the request of the applicant.", "However, the Court notes from the material in the case file that the State Security Court ordered the applicant's continued detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence and the state of the evidence”. 23. The Court takes note of the seriousness of the offence attributed to the applicant and the severity of the relevant punishment. However, it recalls that the danger of absconding cannot solely be assessed on the basis of the severity of the sentence risked, but must be analysed with reference to a number of other relevant additional elements, which may either confirm the existence of such a danger or make it appear so slight that it cannot justify detention pending trial (see Muller v. France, judgment of 17 March 1997, Reports of Judgments and Decisions 1997‑II, § 43, and Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43).", "In this regard, the Court notes the lack of such sufficient reasoning in the domestic court's decisions to prolong the applicant's remand in custody. 24. Finally, although, in general, the expression “the state of the evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier, cited above; Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A; Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319-B, § 55, and Demirel v. Turkey, no.", "39324/98, § 59). 25. The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant's pre-trial detention, which lasted, in total, approximately eleven years and three months, has exceeded the reasonable-time requirement. 26. There has accordingly been a violation of Article 5 § 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicant complained that the length of the criminal proceedings exceeded the “reasonable time” requirement under Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of ...any criminal charge against him, everyone is entitled to a...hearing within a reasonable time by [a] ...tribunal...” A. Admissibility 28. The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as the criminal proceedings against him were still pending. They further maintained that the applicant failed to raise the substance of his complaint before the domestic courts.", "29. The applicant disputed the Government's arguments. 30. The Court reiterates that it has already examined and rejected the Government's similar objections in previous cases (see, in particular, Karakullukçu v. Turkey, no. 49275/99, §§ 27-28, 22 November 2005, and Tutar v. Turkey, no.", "11798/03, §§ 12-14, 10 October 2006). The Court finds no particular circumstances in the instant case, which would require it to depart from its findings in the above-mentioned applications. It therefore rejects the Government's objections under this head. 31. Moreover, the Court notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.", "No other grounds for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits 32. The Government disputed that the length of the proceedings were unreasonably long.", "33. The applicant maintained his allegations. 34. The Court observes that the period to be taken into consideration began on 18 July 1992, when the applicant was arrested and taken into police custody. According to the information in the case file, the case has apparently not yet ended.", "It has already thus lasted more than fourteen years and eight months. 35. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, in particular, Pakkan v. Turkey, no. 13017/02, § 44, 31 October 2006). 36.", "Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 37. There has accordingly been a breach of Article 6 § 1. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 38.", "The applicant initially complained that he was discriminated against because he was charged with crimes committed against the State in breach of Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 39. The Court has examined the applicant's allegation in the light of the evidence submitted to it and considers it unsubstantiated. It follows that this part of the application should be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 41. The applicant claimed 3,000 euros (EUR) in respect of pecuniary and EUR 22,000 for non-pecuniary damages. In support of his pecuniary damage claims, which included the expenses incurred by his relatives and lawyers during his incarceration, the applicant submitted a number of bus and ferry ticket receipts. 42.", "The Government contested the amounts. 43. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, deciding on an equitable basis, it awards the applicant EUR 12,000 in respect of non‑pecuniary damage. B.", "Costs and expenses 44. The applicant also claimed EUR 5,800 for the costs and expenses incurred before the Court. In support of his claim, the applicant submitted the İstanbul Bar Association's recommended minimum fees list for 2006. 45. The Government contested the amount.", "46. According to the Court's case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 under this head. C. Default interest 47. 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.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the length of the applicant's detention pending trial and the length of the criminal proceedings admissible, and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 5 § 3 of the Convention; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into new Turkish liras at the rate applicable at the date of settlement; (i) EUR 12,000 (twelve thousand euros) for non-pecuniary damage, (ii) EUR 1,000 (one thousand euros) for costs and expenses, (iii) plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 3 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléF. Tulkens Registrar President [1] The judgment is not final yet." ]

[ "FIFTH SECTION CASE OF SHEHOVA v. BULGARIA (Application no. 68185/11) JUDGMENT STRASBOURG 18 January 2018 This judgment is final but it may be subject to editorial revision. In the case of Shehova v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: André Potocki, President,Mārtiņš Mits,Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 12 December 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 68185/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Iskra Antimova Shehova (“the applicant”), on 4 October 2011.", "2. The applicant was represented by Ms V. Tenova, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. On 10 July 2014 the complaint concerning the failure of the national authorities to enforce two final domestic judgments in the applicant’s favour was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1959 and lives in Smolyan. 5. In two final judgments of 28 February 2005 and 8 May 2006 the Supreme Court of Cassation awarded the applicant pecuniary damages in respect of breach of contract for construction works which she had carried out.", "The awarded damages comprised BGN 52,784 for the principal amount, plus BGN 17,685 in default interest and BGN 5,433 in costs and expenses, or a total amount of BGN 75,902.93, the equivalent to 38,000 euros (EUR). The damages were awarded to the applicant against the National Centre for Recreation, Rehabilitation and Sport – Ministry of Education and Science (“the Centre”, a State body subsidised by the Ministry of Education and Science and exercising certain functions delegated by the Ministry). 6. By an order of 25 May 2005 the Minister of Education closed down the Centre and ordered that its remaining property be managed by the Ministry of Education. The Ministry then established a State-owned joint‑stock company with part of the Centre’s property, including the real estate in which the applicant had carried out the construction works.", "7. On 13 May 2005 and 15 March 2007 the applicant was issued with two writs of enforcement for the amounts awarded in the final judgments of 2005 and 2006 (see paragraph 5 above) and on 6 February 2008 she presented the writs to the Ministry of Education asking it to pay. 8. The Ministry replied in writing that it was not the successor to the Centre and did not owe payment to the applicant. In October 2009 the applicant reiterated her request but received a similar reply by the Ministry.", "The Ministry also pointed out that payment could not be sought from the State-owned joint-stock company either as it had a legal personality separate from that of the Ministry. By a letter of 23 September 2010, the Minister provided a similar explanation to the applicant. 9. The applicant brought judicial review proceedings challenging the Minister’s refusal. In a final decision of 8 April 2011 the Supreme Administrative Court rejected the appeal as inadmissible.", "10. As of 19 March 2015, the date of the applicant’s last communication to the Court, no change in the above circumstances had been reported. II. RELEVANT DOMESTIC LAW AND PRACTICE Enforcement of monetary claims vis-à-vis State institutions 11. The relevant provisions concerning enforcement of monetary claims vis-à-vis State bodies until 2007 have been set out in the case of Mancheva v. Bulgaria, no.", "39609/98, §§ 36-38, 30 September 2004. The relevant provisions as of 2008 can be found in the Code of Civil Procedure 2007. In particular, Article 519 of the Code of Civil Procedure 2007 provides as follows: “1. The enforcement of money claims against State bodies is not allowed. 2.", "Money claims against State bodies shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.” 12. In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. In a judgment of 21 December 2010 (реш.", "№ 15 от 21 декември 2010 г. по к. д. № 9/2010 г., обн. ДВ, бр. 5/2011 г. ), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerned State bodies, but declared it unconstitutional in so far as it concerned municipalities.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 13. The applicant complained that the failure of the authorities to implement the final judgments in her favour, by virtue of which a State body owed her a sum of money, breached her right to access to a court under Article 6 § 1 of the Convention. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 6 § 1 of the Convention and of Article 1 of Protocol No.", "1 to the Convention, which read respectively as follows: Article 6 § 1 “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...” A. Admissibility 14.", "At the time of submitting their observations in respect of the applicant’s claim for just satisfaction, the Government advanced that the applicant had failed to exhaust domestic remedies. In particular, the writs of enforcement presented by her to the Ministry had indicated that the indebted institution had been the Centre. According to the Government the Ministry was not a legal successor of the Centre and had not taken part in the judicial proceedings concerning the Centre’s debts to the applicant. Consequently, the applicant’s complaint concerned a legal dispute which had not been dealt with at the domestic level. 15.", "The Court considers that the issue of admissibility is closely linked to the merits and must therefore be joined to the merits. The Court furthermore notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 16. The applicant reiterated her complaint. 17. The Government did not elaborate further. 18.", "In accordance with the Court’s established case-law, execution of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention and an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see, among many other authorities, Burdov v. Russia, no 59498/00, §§ 34–35, ECHR 2002‑III; Mancheva v. Bulgaria, no. 39609/98, § 54, 30 September 2004; Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 51, 15 October 2009). Likewise, the impossibility for an applicant to obtain the execution of a judgment in his or her favour in due time constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Yuriy Nikolayevich Ivanov, cited above, § 52).", "19. It is the State’s obligation to ensure that final decisions against its organs, or entities or companies owned or controlled by the State, are enforced without an unreasonably long delay (see Yuriy Nikolayevich Ivanov, cited above, § 54, with further references). The Court has earlier held in this respect that liquidation proceedings against a State organ cannot absolve the State of its responsibility to enforce a final judgment. To conclude otherwise would allow the State to use this avenue to avoid payment of the debts of its organs, especially taking into account that changing needs force the State to make frequent changes in its organisational structure, including by forming new organs and liquidating old ones (see Kuksa v. Russia, no. 35259/04, § 26, 15 June 2006; and Nikitina v. Russia, no.", "47486/07, § 19, 15 July 2010). 20. Turning to the present case, the two final judgments of 2005 and 2006 in the applicant’s favour have remained unenforced (see paragraphs 8 and 10 above) and the Government have not provided any justification for that (see paragraph 17 above). The Court has already established, including in the context of Bulgarian cases before it, that the prolonged failure of State bodies to enforce a final judgment in accordance with which they owed the payment of a sum of money breached both Article 6 § 1 and Article 1 of Protocol No. 1 (see Mancheva, cited above, §§ 61–62 and §§ 66–68; Sirmanov v. Bulgaria, no.", "67353/01, §§ 33–34 and §§ 38–39, 10 May 2007; and Pashov and Others v. Bulgaria, no. 20875/07, §§ 59–63, 5 February 2013). 21. The Court accordingly dismisses the Government’s objection concerning non-exhaustion of domestic remedies and finds that, by failing for over ten years to comply with the enforceable judgments in the applicant’s favour, the domestic authorities prevented her from receiving an amount of money she could reasonably have expected to receive and deprived the provision of Article 6 § 1 of all useful effect. 22.", "It follows that there has been a violation of Article 6 § 1 and Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. 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 24. The applicant claimed approximately EUR 38,000 in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage. 25. The Government submitted that the claim for non-pecuniary damages was excessive and unjustified. 26.", "The Court observes that the amount claimed by the applicant in respect of pecuniary damage is the same as that awarded to her in the final judgments and it has remained unpaid. Accordingly, it awards her EUR 38,000 for pecuniary damage. 27. The Court furthermore finds that the failure of the authorities to pay the applicant what was due to her on the basis of the final judgments must have caused her emotional distress. It accordingly awards the applicant EUR 3,600 in respect of non-pecuniary damage.", "B. Costs and expenses 28. The applicant also claimed EUR 2,000 for the costs and expenses in the form of legal fees which she had incurred before the Court. 29. The Government submitted that this sum was exaggerated and not accompanied by the relevant account of expenses.", "30. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 covering costs for the proceedings before the Court. C. Default interest 31. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies and dismisses it; 2. Declares the application admissible; 3. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 38,000 (thirty-eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 18 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Anne-Marie DouginAndré PotockiActing Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF DUDNIKOV AND OTHERS v. RUSSIA (Application no. 63928/13 and 7 others - see appended list) JUDGMENT STRASBOURG 4 May 2017 This judgment is final but it may be subject to editorial revision. In the case of Dudnikov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Luis López Guerra, President,Dmitry Dedov,Branko Lubarda, judges,and Karen Reid, Section Registrar, Having deliberated in private on 30 March 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention.", "THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 6. The applicants complained of the inadequate conditions of their detention.", "They relied on Article 3 of the Convention, which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 7. The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants’ detention are indicated in the appended table. The Court refers to the principles established in its case‑law regarding inadequate conditions of detention (see, for instance, Kudła v. Poland [GC], no. 30210/96, §§ 90‑94, ECHR 2000‑XI, and Ananyev and Others v. Russia, nos.", "42525/07 and 60800/08, §§ 139‑165, 10 January 2012). It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 36–40, 7 April 2005). 8. In the leading case of Sergey Babushkin v. Russia, no.", "5993/08, 28 November 2013, the Court already found a violation in respect of issues similar to those in the present case. 9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants’ conditions of detention were inadequate. 10.", "These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 11. 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.” 12. Regard being had to the documents in its possession, to its case‑law and the long delay for some of the applicants in filing the application, the Court considers it reasonable to award the sums indicated in the appended table.", "13. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3.", "Holds that these applications disclose a breach of Article 3 of the Convention concerning the inadequate conditions of detention; 4. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 4 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Keren ReidLuis López GuerraRegistrarPresident APPENDIX List of applications raising complaints under Article 3 of the Convention (inadequate conditions of detention) No. Application no.Date of introduction Applicant name Date of birth Representative name and location Facility Start and end date Duration Number of inmates per brigade Sq.", "m. per inmate Number of toilets per brigade Specific grievances Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1] 63928/13 17/01/2013 (8 applicants) Yuriy Pavlovich Dudnikov 01/01/1955 Eduard Petrovich Timoshin 04/02/1970 Vladimir Viktorovich Menkov 12/10/1982 Mikhail Borisovich Konstantinov 20/04/1984 Anton Vasilyevich Bolsheshapov 09/09/1985 Anatoliy Anatolyevich Berestnev 01/01/1961 Arslan Faritovich Sayfutdinov 01/01/1986 Sergey Borisovich Kutnyuk 01/01/1969 Romanenko Luydmila Viktorovna Tulun IK-56 Sverdlovsky Region 09/01/2013 pending More than 4 year(s) and 2 month(s) and 22 day(s) no water-supply or sewage systems in cells, a bucket serving as a lavatory was not separated from the rest of the cell, thus offering no privacy, dim light and no fresh air, an allowed daily walk of no more than two hours in one of the five recreation yards located close to a waste dump, each yard measuring 6 square metres 14,800 70723/13 23/10/2013 Aydar Abuzarovich Mubarakshin 04/04/1978 IK-3 Samara Region 11/06/2010 pending More than 6 year(s) and 9 month(s) and 20 day(s) 160 inmate(s) 1.3 m² 4 toilet(s) overcrowding, poor quality of water, poor quality of food, poor heating, 8 sinks for 160 inmates 15,500 71658/13 25/09/2013 Yevgeniy Aleksandrovich Gladkikh 23/08/1984 IK-11 Stavropol 15/07/2013 pending More than 3 year(s) and 8 month(s) and 16 day(s) 160 inmate(s) 1.6 m² no hot water, lack of requisite medical assistance 13,300 75596/13 05/11/2013 Igor Viktorovich Khakhulin 07/02/1961 IK-8, punishment ward, Republic of Udmurtiya 11/02/2013 to 28/03/2013 1 month(s) and 18 day(s) 4.25 m² lack of requisite medical assistance, no drinking water, no washstand, broken pan, stench, high humidity, sleeping on the floor, low temperature, poor sanitary conditions 1,400 77417/13 11/11/2013 Arkadiy Valeryevich Shmalakov 14/10/1984 IK-29 Kirov Region 23/03/2012 pending More than 5 year(s) and 8 day(s) 1.9 m² no ventilation, insects and rats in the toilet house, bedbugs 15,300 33654/14 20/10/2014 Vyacheslav Valeryevich Datsik 31/12/1980 IK-31 Krasnoyarsk Region 07/11/2013 to 16/10/2014 11 month(s) and 10 day(s) 1.9 m² overcrowding, lack of fresh air, constant cigarette smoke 5,000 12889/15 04/03/2015 Ravil Mirsaitovich Khakimov 09/02/1969 Kochneva Natalya Vladimirovna Yekaterinburg IK-5 Sverdlovskiy Region 16/03/2014 to 17/10/2014 7 month(s) and 2 day(s) lack of requisite medical assistance, no access to natural light or fresh air, constant electric light, dining table close to toilet, video surveillance denies privacy when using toilet, insects and rodents, no hot water, shower once a week or less often, handcuffing during outside exercises that were irregular 3,600 13252/15 02/03/2015 Aleksey Viktorovich Kinev 03/09/1981 Vinogradov Aleksandr Vladimirovich Kostroma IK-7 Kostroma 01/07/2010 to 13/02/2015 4 year(s) and 7 month(s) and 13 day(s) 120 inmate(s) 2 m² 3 toilet(s) 3 sinks, no drinking water, poor quality of water, bedbugs and rats 5,000 [1]. Plus any tax that may be chargeable to the applicants." ]

[ "SECOND SECTION CASE OF MEČIĆ v. CROATIA (Application no. 37226/13) JUDGMENT STRASBOURG 19 July 2016 This judgment is final. It may be subject to editorial revision. In the case of Mečić v. Croatia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paul Lemmens, President,Ksenija Turković,Jon Fridrik Kjølbro, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 28 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "37226/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Igor Mečić (“the applicant”), on 16 April 2013. 2. The applicant was represented by Ms V. Šnur, an advocate practising in Vinkovci. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicant alleged that enforcement of the judgment ordering his former employer to pay him remuneration for overtime work had been unduly delayed. 4. On 30 August 2013 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1974 and lives in Vinkovci. A. Background to the case 6. By a judgment of 1 June 2006 the Vinkovci Municipal Court (Općinski sud u Vinkovcima) ordered the applicant’s former employer, the company MD Profil d.o.o. (hereinafter “the debtor company”), to pay him 20,921.18 Croatian kunas (HRK)[1] as remuneration for overtime work, together with accrued statutory default interest, and HRK 19,495.90[2] in costs.", "On 10 March 2008 the Vukovar County Court (Županijski sud u Vukovaru) upheld the first-instance court’s judgment, which thereby became final. 7. By a judgment of 17 January 2008 the Županja Municipal Court (Općinski sud u Županji) found the applicant guilty of the criminal offence of embezzlement committed against his former employer, the debtor company. It sentenced him to ten months’ imprisonment, suspended for a period of two years provided that in that period he did not commit a further offence. The court also ordered the applicant to pay the debtor company HRK 20,311.78[3] in compensation for pecuniary damage caused by his offence.", "B. Enforcement proceedings 8. On 14 April 2008 the applicant applied to the Đakovo Municipal Court (Općinski sud u Đakovu) for enforcement of the above judgment of 1 June 2006 (see paragraph 6 above). 9. The next day, on 15 April 2008, that court issued a writ of execution (rješenje o ovrsi) whereby it ordered the seizure of funds in the debtor company’s bank account in order to satisfy the applicant’s claim.", "10. The debtor company lodged an appeal, and on 28 August 2008 the Osijek County Court (Županijski sud u Osijeku) quashed the writ of execution and remitted the case to the first-instance court. It found that the judgment sought to be enforced had not been stamped with a certificate of enforceability and that a grace period for voluntary compliance (paricijski rok) had not been set. 11. In the new proceedings before the Đakovo Municipal Court the applicant submitted on 25 September 2008 a copy of the judgment that he was seeking to enforce stamped with a certificate of enforceability.", "At the same time, he asked the court to set a grace period for voluntary compliance, pursuant to the law. 12. On 7 November 2008 the court issued a new writ of execution. It ordered the debtor company to pay the applicant, within a grace period of eight days (a) the sums it had been ordered to pay under the judgment of 1 June 2006 (that is to say the main debt, together with accrued statutory default interest, and the costs of the civil proceedings, see paragraph 6 above), (b) the statutory default interest accrued on the costs of the civil proceedings from the date of delivery of that judgment, and (c) the costs of enforcement proceedings, together with the statutory default interest accrued on those costs from the date of issuance of the writ of execution. 13.", "By a decision of 19 February 2009 the Osijek County Court dismissed the debtor company’s appeal and upheld the writ of execution. 14. Upon receiving, on 27 February 2009, the final judgment of the criminal court of 17 January 2008 (see paragraph 7 above), the debtor company on 9 March 2009 sent a letter containing a set-off statement to the applicant’s legal representative whereby it set off (prijeboj) its claim for compensation against the applicant stemming from that judgment with his claim for payment of overtime work against the debtor company stemming from the judgment he was seeking to enforce. 15. On the same day, 9 March 2009, the debtor company informed the court that it had received the above-mentioned final judgment of the criminal court and that it had executed the set-off described above (see the preceding paragraph).", "The debtor company at the same time lodged an extraordinary appeal against the writ of execution of 7 November 2008 (see paragraph 12 above) and lodged an application to postpone the enforcement. 16. By a decision of 27 March 2009 the Đakovo Municipal Court decided on the debtor company’s motion for postponement, instructing the debtor company to institute separate civil proceedings for the enforcement to be declared inadmissible (in full or in part). At the same time it postponed the enforcement pending the final outcome of those proceedings. 17.", "The debtor company instituted those civil proceedings on 14 April 2009. They ended on 31 March 2011, when the Osijek County Court upheld the first-instance judgment of the Đakovo Municipal Court of 21 October 2010, whereby the enforcement of up to HRK 20,095.30[4] was declared inadmissible. The second-instance judgment was served on the debtor company on 11 May 2011 and on the applicant a day later. 18. Following an appeal lodged by the applicant, on 21 January 2010 the Osijek County Court quashed the first-instance decision of 27 March 2009 (see paragraph 16 above) in so far as it allowed the postponement of the enforcement and in this respect remitted the case.", "It dismissed the remainder of the applicant’s appeal and upheld the first-instance decision in the remaining part. 19. In the resumed proceedings, by a decision of 17 June 2010 the Đakovo Municipal Court again postponed the enforcement. 20. On 3 February 2011 the Osijek County Court dismissed the applicant’s appeal against that decision and upheld it.", "21. On 24 May 2011 the applicant informed the Đakovo Municipal Court that the judgment declaring the enforcement inadmissible in part had become final (see paragraph 17 above) and asked it to continue with the enforcement in the remaining part. 22. By a decision of 2 June 2011 that court decided to resume the enforcement in the remaining part. By another decision of the same date that court ordered the debtor company to pay the applicant: (a) HRK 599.40[5] for unpaid overtime work, together with statutory default interest accrued since 11 March 2009, (b) HRK 19,495.90[6] in costs of civil proceedings, together with statutory default interest accrued since 1 June 2006, and (c) HRK 2,606.25[7] in costs of enforcement proceedings, together with statutory default interest accrued since 7 November 2008.", "This decision became final on 17 June 2011. 23. On 20 June 2011 the court informed the Domestic Payments Agency (Financijska agencija – FINA) of its second decision of 2 June 2011 (see the preceding paragraph). In the execution of that decision the agency on 21 July 2011 transferred HRK 38,306.87[8] from the debtor company’s bank account to those of the applicant and his legal representative. C. Proceedings following the applicant’s request for protection of the right to a hearing within a reasonable time 24.", "Meanwhile, on 9 October 2009 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Osijek County Court, complaining about the length of the above enforcement proceedings. 25. By a decision of 9 November 2010 the Osijek County Court dismissed the applicant’s request. It held that, while the case was indeed important for the applicant, the proceedings complained of were complex and he had contributed to their length in that he had not initially submitted a copy of the judgment he was seeking to enforce stamped with a certificate of enforceability (see paragraphs 8-11 above). 26.", "On 25 November 2010 the applicant appealed against that decision. 27. By a decision of 6 June 2011 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and served its decision on his representative on 26 August 2011. 28. On 23 September 2011 the applicant lodged a constitutional complaint against the second-instance decision.", "29. By a decision of 12 December 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint and served that decision on his representative on 31 December 2012. It held that the contested second-instance decision was not open to constitutional review. II. RELEVANT DOMESTIC LAW AND PRACTICE 30.", "The relevant domestic law and practice is set out in Vrtar v. Croatia, no. 39380/13, §§ 50, 52-56 and 61-63, 7 January 2016. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 31. The applicant complained that the delays in the enforcement proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention and that he had not received any compensation at the domestic level on that account.", "The relevant part of that Article reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 32. The Government contested that argument. 33. The period to be taken into consideration began on 14 April 2008, when the applicant applied for enforcement (see paragraph 8 above), and ended on 21 July 2011, when the Domestic Payment Agency transferred an amount corresponding to the revised judgment debt to the bank accounts of the applicant and his legal representative (see paragraph 23 above). It thus lasted some three years and three months.", "A. Admissibility 34. The Government disputed the admissibility of this complaint on three grounds. Specifically, they argued that the applicant had failed to observe the six-month rule, that he had not suffered a significant disadvantage, and that he had abused the right of application. 35. The applicant did not submit observations in reply to those of the Government but only his claim for just satisfaction.", "Thus, he did not comment on the Government’s inadmissibility objections. 1. Compliance with the six-month rule 36. The Government submitted that the applicant had failed to comply with the six-month rule because he had erroneously believed that the constitutional complaint that he had lodged against the Supreme Court’s decision of 6 June 2011 (see paragraphs 27-28 above) had constituted an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention and had thus been capable of interrupting the running of the six-month time-limit prescribed in that Article. They explained that after the entry into force on 29 December 2009 of amendments to the relevant legislation providing a remedy for the excessive length of judicial proceedings, a constitutional complaint could no longer be lodged in respect of Supreme Court decisions rendered in proceedings for protection of the right to a hearing within a reasonable time.", "According to the Government, the Constitutional Court had already adopted that view in its decision no. U‑IIIVs-3669/2006 of 2 March 2010, which was published in the Official Gazette on 19 March 2010. The applicant, who had been represented by an advocate, should have been aware of that. Consequently, the final decision, within the meaning of Article 35 § 1 of the Convention, for the purposes of calculating the six-month time limit in the applicant’s case was not the Constitutional Court’s decision of 12 December 2012 (see paragraph 29 above) but the Supreme Court’s decision of 6 June 2011 (see paragraph 27 above). However, the applicant lodged his application with the Court on 16 April 2013 (see paragraph 1 above), that is to say more than six months later.", "37. The Court notes that in another case it has already rejected a similar objection raised by the Government (see Vrtar, cited above, §§ 71-85) and sees no reason to hold otherwise in the present case. It follows that the Government’s objection regarding non-compliance with the six-month rule must be dismissed. 2. As to whether the applicant suffered a significant disadvantage 38.", "The Government submitted that the applicant had sought enforcement of the judgment of 1 June 2006 ordering his former employer to pay him a certain amount of money as remuneration for his overtime work (see paragraphs 6 and 8 above). However, he had subsequently been convicted for embezzling funds belonging to his employer and ordered to pay compensation in an amount approximately corresponding to that of the above-mentioned remuneration (see paragraph 7 above). Specifically, after the set-off of 9 March 2009, the remaining sum his employer had still owed him for his overtime work had amounted to HRK 599.40 only (see paragraphs 14 and 22 above), that is to say some 80 euros (EUR). In this connection the Government referred to cases where the amounts at stake had been higher than that in the present case and had ranged from EUR 90 (see Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010) to EUR 228 (see Burov v. Moldova (dec.), no.", "38875/03, 14 June 2011) and even EUR 504 (see Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Since the Court had declared those cases inadmissible for lack of a significant disadvantage, the Government invited it to do the same with the applicant’s case. 39. The Court considers that the judgment debt relevant for the purposes of establishing what was at stake for the applicant is the sum he had initially sought (HRK 20,921.18 for overtime work and HRK 19,495.90 for the costs of civil proceedings, together with the accrued statutory default interest – see paragraphs 6 and 8 above), regardless of the fact that, in view of the set-off of 9 March 2009, the debtor company had eventually owed him a significantly lower amount, cited by the Government, as remuneration for overtime work (see paragraphs 14, 17, 22 and 38 above).", "40. In any event, the Court notes that the debt the applicant’s former employer ultimately had to pay him did not consist only of remuneration for overtime work equaling HRK 599.40, as the Government suggested (see paragraph 38 above). Rather, as specified in the decision of 2 June 2011 (see paragraph 22 above), it also included (i) statutory default interest accrued on that amount from 11 March 2009, (ii) HRK 19,495.90 for the costs of civil proceedings, plus statutory default interest accrued on that amount from 1 June 2006, and (iii) HRK 2,606.25 for the costs of enforcement proceedings, plus interest accrued on that amount from 7 November 2008. In this connection the Court further notes that in the execution of that decision, on 21 July 2011 the Domestic Payments Agency transferred from the debtor company’s account to the accounts of the applicant and his legal representative a total of HRK 38,306.87, that is to say some EUR 5,125.12 (see paragraph 23 above). In the Court’s view, that sum cannot be considered insignificant.", "The Government’s objection concerning the alleged lack of a significant disadvantage must therefore be dismissed. 3. Abuse of the right of application 41. The Government argued that the applicant had abused the right of application in that he had not informed the Court that the enforcement proceedings complained of had ended. 42.", "The Court notes that the applicant in the present case complained (primarily) that he had not received any compensation for the delays in the enforcement proceedings (see paragraph 31 above) rather than of the fact that the judgment he had been seeking to enforce had not been enforced. In that context the fact that the enforcement was completed, while indeed important, is nevertheless not of such crucial importance that the applicant’s failure to inform the Court of it would constitute an abuse of the right of application. The present case therefore cannot be compared to the case of Kerechashvili v. Georgia ((dec.), no. 5667/02, 2 May 2006), where the applicant complained of the non-enforcement of a judgment in his favour but concealed the fact that the judgment in question had been enforced in part more than a year before he had lodged his application, and in full before it had been communicated to the respondent Government. It follows that the Government’s objection concerning the alleged abuse of the right of application must also be dismissed.", "4. Conclusion as regards admissibility 43. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 44. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III). It further reiterates that enforcement proceedings by their very nature need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no.", "35382/97, § 23, ECHR 2000-IV) and that special diligence is necessary in employment disputes (see Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230-D, p. 39, § 17). 45. To decide whether the delay was reasonable, the Court will look at the complexity of the enforcement proceedings, how the applicant and the authorities behaved, and the nature of the award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007).", "46. The Court accepts that the applicant contributed to the delay in the proceedings complained of in that he did not immediately submit a copy of the judgment that he was seeking to enforce, stamped with a certificate of enforceability (see paragraphs 10 and 25 above). However, that omission on his part protracted the proceedings by some four months only (see paragraphs 8-11 above). Furthermore, the Court is not persuaded that the proceedings were of such complexity that could justify their remaining length amounting to some two years and eleven months. In particular, the Court is not convinced that the issue of whether the majority of the applicant’s claim for overtime work was extinguished by the set-off of 9 March 2009 (see paragraph 14 above) could not have been resolved earlier than 31 March 2011 (see paragraph 17 above).", "47. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, mutatis mutandis, Chernysheva v. Ukraine, no. 22591/04, §§ 20 and 23, 10 August 2006, and Bormotov v. Russia, no. 24435/04, §§ 17 and 19, 31 July 2008). 48.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the delay in the enforcement was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.", "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 50. The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 51. The Government contested that claim.", "52. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,250 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 53.", "The applicant also claimed EUR 6,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 54. The Government contested that claim. 55. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 1,000 for costs and expenses incurred in the domestic proceedings and EUR 975 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant on those amounts.", "C. Default interest 56. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i) EUR 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,975 (one thousand nine hundred and seventy-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıPaul LemmensDeputy RegistrarPresident [1] Approximately 2,876.55 euros (EUR) at the time. [2] Approximately EUR 2,680.58 at the time.", "[3] Approximately EUR 2,756.28 at the time. [4] Approximately EUR 2,716.18 at the time [5] Approximately EUR 80.27 at the time. [6] Approximately EUR 2,610.78 at the time. [7] Approximately EUR 349 at the time. [8] Approximately EUR 5,125.12 at the time." ]

[ "FIRST SECTION CASE OF PLOTNIKOVY v. RUSSIA (Application no. 43883/02) FINAL JUDGMENT This version was rectified on 30 June 2005 under Rule 81 of the Rules of the Court STRASBOURG 24 February 2005 In the case of Plotnikovy v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsS. Botoucharova,MrA. Kovler,MrsE.", "Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens, judgesand Mr S. Nielsen, Section Registrar, Having deliberated in private on 1 February 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43883/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Lyubov Aleksandrovna Plotnikova, the first applicant, and Mr Petr Vasilyevich Plotnikov, the second applicant, Russian nationals, on 26 November 2002. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3. On 13 May 2003 the Court decided to communicate the application.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1948 and 1944 respectively and live in Voronezh. 5. In 2000 the applicants each brought a set of proceedings against the welfare office of the Levoberezhnyi District of Voronezh to claim a raise of their pensions by a statutory index ratio.", "6. On 10 October 2000 the Levoberezhnyi District Court of Voronezh granted both applicants' claims. It awarded them arrears of 1,123.07 roubles (RUR) and RUR 1,089.51 respectively. Both judgments entered into force on 21 October 2000. [i] 7.", "On 19 December 2000 the bailiff service instituted enforcement proceedings in respect of the judgments of 10 October 2000. 8. On 27 April 2001 the bailiff service terminated execution proceedings in respect of both judgments of 10 October 2000, which had not been enforced because of the lack of funds on the debtor's accounts. 9. On 30 May 2002, following the applicant's request, the bailiff service instituted new enforcement proceedings in respect of the judgments of 10 October 2000.", "10. On 27 June 2002 the bailiff service terminated execution proceedings, again because of the lack of funds on the debtor's accounts. 11. The judgments of 10 October 2000 have not been enforced to date. THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 12. The applicant complained that the prolonged non-enforcement of their respective awards provided for in the judgments of 10 October 2000 violated their “right to a court” under Article 6 § 1 of the Convention and their right to the peaceful enjoyment of possessions as guaranteed in Article 1 of Protocol No. 1 to the Convention. These Articles in so far as relevant provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 13. The Government contested the admissibility of the application on the ground that the applicants had failed to exhaust domestic remedies. They claimed that the applicants should have brought an action against the Administration of the Voronezh Region, which was liable for outstanding debts of the welfare office.", "They also alleged that the applicants should have brought an action against the bailiff service which was in charge of the execution proceedings. 14. The applicants contested the Government's objection and maintained their application. 15. The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof.", "It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further recalls that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000‑XI).", "16. The Court notes that the validity of the judgments held against the welfare office on 10 October 2000 is undisputed. The Court considers that having obtained a judgment and an execution order against a particular State authority the applicants should not be required to institute, on their own initiative, other proceedings against different State agency to meet their claims. Moreover, even assuming that the applicants brought an action against the Administration of the Voronezh Region, the underlying problem of non-enforcement of the judgments at issue would remain. The Court concludes that such an action would not have been an effective remedy within the meaning of Article 35 § 1 of the Convention.", "17. In so far as the Government suggest an action against the bailiff service, no reasons were put forward why it should be considered an effective remedy. Neither party suggested that it was any inefficiency of the bailiff service which prevented the enforcement of the judgments at issue; it was apparently the lack of funds. The Court therefore finds that an action against the bailiff office would not have enhanced the applicants' prospects of receiving their awards. The Court considers that in the present case it could not be said to have constituted an effective remedy against non‑enforcement.", "18. The Court therefore does not accept that the applicant was required to exhaust domestic remedies through a further court action against the Administration of the Voronezh Region or the bailiff service. 19. The Court notes that the application 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 20. The Government did not dispute the validity of the judgments in question and admitted that the authorities were under obligation to enforce them. They did not present any justification for the failure to do so.", "21. The applicants maintained their complaints. Article 6 § 1 of the Convention 22. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it 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. However, that right would be illusory if a Contracting State's domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party.", "It would be inconceivable that Article 6 § 1 should describe in detail the procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III, and Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40). 23. The Court further reiterates that it is not open to a State authority to cite the lack of funds or other resources as an excuse for not honouring a court award.", "Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1. The applicant should not be prevented from benefiting from the success of the litigation on the ground of alleged financial difficulties experienced by the State (see Burdov v. Russia, cited above, § 35). 24. Turning to the instant case, the Court notes that the judgments of 10 October 2000 have until now remained unenforced for more than four years. 25.", "By failing for such a substantial period of time to take the necessary measures to comply with the final judicial decisions in the present case, the Russian authorities deprived the provisions of Article 6 § 1 of their useful effect. 26. There has accordingly been a violation of Article 6 § 1 of the Convention. Article 1 of Protocol No. 1 to the Convention 27.", "The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Burdov v. Russia, cited above, § 40, and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). The judgments of 10 October 2000 provided their respective beneficiaries with enforceable claims and not simply a general right to receive support from the State. The judgments had become final as no ordinary appeal was made against them, and enforcement proceedings had been instituted.", "It follows that the impossibility for the applicants to have the judgments enforced for a substantial period of time constitutes an interference with their right to peaceful enjoyment of their possessions, as set forth in the first sentence of the first paragraph of Article 1 of Protocol No. 1. 28. By failing to comply with above judgments, the national authorities have prevented the applicants from receiving their awards. The Government have not advanced any other justification but the lack of financial resources for this interference.", "However, the Court considers that the lack of funds cannot justify such an omission (see Burdov v. Russia, cited above, § 41). 29. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. 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 31. The applicants claimed 5,000 euros (EUR) each in respect of pecuniary and non-pecuniary damage. 32.", "The Government consider that the amounts claimed are unreasonable and unsubstantiated. They believe that, in any event, their awards should be proportionate to the amounts due under the judgments which have not been enforced. 33. The Court notes that the applicants did not quantify the amount claimed in respect of pecuniary damage. In so far as their claims can be understood as referring to the amounts due under the judgments, the Court notes that the State's outstanding obligation to enforce the judgments at issue is not in dispute.", "Accordingly, the applicants are still entitled to recover the principal amount of the debt in the course of domestic proceedings. The Court recalls that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been had the requirements of Article 6 not been disregarded (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court finds that in the present case this principle applies as well, having regard to the violations found.", "It therefore considers that the Government shall secure, by appropriate means, the enforcement of the awards made by the domestic courts. For this reason the Court does not find it necessary to make an award for pecuniary damage in so far as it relates to the principal amount. 34. As for non-pecuniary damage, the Court accepts that the applicants suffered distress because of the State authorities' failure to enforce the judgments. However, the amounts claimed in respect of non-pecuniary damage appear excessive.", "The Court takes into account the award made in the Burdov v. Russia case (cited above, § 47), such factors as the applicants' age, personal income, the nature of the awards in the present case, i.e. arrears in respect of the increase of retirement pension, the length of the enforcement proceedings and other relevant aspects. Making its assessment on an equitable basis, it awards each of the applicants EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 35.", "The applicants made no claim under this head. C. Default interest 36. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention in respect of each applicant; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of each applicant; 4. Holds (a) that the respondent State, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, shall secure, by appropriate means, the enforcement of the awards made by the domestic courts, and in addition pay to each applicant EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicants' claim for just satisfaction.", "Done in English, and notified in writing on 24 February 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident [i] Paragraphs 5 and 6 were rectified on 30 June 2005. The former version read as follows: “5. In 2000 the applicants each brought a set of proceedings against the welfare office of Novovoronezh to claim a raise of their pensions by a statutory index ratio. 6.", "On 10 October 2000 the Novovoronezh Town Court of the Voronezh Region granted both applicants’ claims. It awarded them arrears of 1,123.07 roubles (RUR) and RUR 1,089.51 respectively. Both judgments entered into force on 21 October 2000.”" ]

[ "COURT (PLENARY) CASE OF BROZICEK v. ITALY (Application no. 10964/84) JUDGMENT STRASBOURG 19 December 1989 In the Brozicek case[*], The European Court of Human Rights, taking its decision in plenary session pursuant to Rule 50 of the Rules of Court and composed of the following judges: Mr R. Ryssdal, President, Mr J. Cremona, Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr F. Matscher, Mr J. Pinheiro Farinha, Mr L.-E. Pettiti, Mr B. Walsh, Sir Vincent Evans, Mr R. Macdonald, Mr C. Russo, Mr R. Bernhardt, Mr A. Spielmann, Mr J. De Meyer, Mr J.A. Carrillo Salcedo, Mr N. Valticos, Mr S.K. Martens, Mrs E. Palm, Mr I. Foighel, and also of Mr M.-A.", "Eissen, Registrar, and Mr H. Petzold, Deputy Registrar, Having deliberated in private on 28 September and 22 November 1989, Delivers the following judgment which was adopted on the last- mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 11 May 1988, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\"). It originated in an application (no.", "10964/84) against the Italian Republic lodged with the Commission under Article 25 (art. 25) by Mr Georg Brozicek, a German national, on 7 May 1984. The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Italy recognised the compulsory jurisdiction of the Court (Article 46) (art.", "46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of certain of its obligations under Article 6 §§ 3 (a) and 1 (art. 6-3-a, art. 6-1). 2.", "In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings. He was given leave to present his own case (Rule 30 § 1, second sentence). 3. The Chamber to be constituted included ex officio Mr C. Russo, the elected judge of Italian nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 § 3 (b)).", "On 30 May 1988, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr F. Matscher, Mr L.-E. Pettiti, Mr J. Gersing, Mr A. Spielmann and Mr J. De Meyer (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr Thór Vilhjálmsson, substitute judge, replaced Mr Gersing, who had died (Rules 22 § 1 and 24 § 1). 4.", "Mr Ryssdal assumed the office of President of the Chamber (Rule 21 § 5) and, through the Registrar, consulted the Agent of the Italian Government (\"the Government\"), the Delegate of the Commission and the applicant on the need for a written procedure (Rule 37 § 1). In accordance with the orders made in consequence, the registry received the applicant's memorial on 29 September 1988 and the Government's memorial on 2 November 1988. In a letter which reached the registry on 10 January 1989, the Deputy Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 5. At the Government's request, the Court decided, on 23 February 1989, to hear five witnesses on a specific point and to order an opinion by a handwriting expert (Rule 40 § 1, first sub-paragraph).", "6. The applicant for his part requested that other persons be called and the President agreed to this pursuant to Rule 40 § 1, second sub-paragraph, on the understanding that the evidence adduced should remain within the terms of reference already laid down by the Chamber. 7. The Chamber appointed Judges Matscher and Pettiti who took evidence from the various witnesses at a hearing held on 28 April 1989, in the presence of the participants in the proceedings before the Court. They authorised one of the witnesses, who had a legitimate reason for being unable to come to Strasbourg, to submit a written statement which would be assessed by the Court as to its admissibility and relevance.", "Written statements by two other persons, which the applicant had sent to the registry on 24 April, were dealt with in the same way. 8. On 5 May 1989 the President received the opinion of Mrs A.-M. Jacquin-Keller, a handwriting expert at the Colmar Court of Appeal and approved by the French Court of Cassation, on the task which had been assigned to her by the Chamber (see paragraph 5 above). The Court had previously obtained from the Commission, for the purposes of the investigative measure in question, various documents from the national proceedings and specimens of the applicant's handwriting. 9.", "On the same day, having consulted, through the Registrar, those who would be appearing before the Court, the President directed that the oral proceedings should open on 22 May 1989 (Rule 38). 10. The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand. There appeared before the Court: - for the Government Mr L. Ferrari Bravo, Head of the Diplomatic Legal Service of the Ministry of Foreign Affairs, Agent, Mr G. Grasso, avvocato, Mr G. Raimondi, magistrato, Counsel; - for the Commission Mr G. Batliner, Delegate.", "On the day of the hearing the applicant informed the Court that he was unable to attend because of an illness. He agreed to the hearing's being conducted in his absence. On 20 May he had supplied the text of his address. The Court heard addresses by Mr Ferrari Bravo for the Government and Mr Batliner for the Commission as well as their replies to its questions. 11.", "On various dates between 22 May and 9 October, the participants in the proceedings before the Court sent to the registry observations, communications and documents, on their own initiative or at the Court's request, as the case may be. 12. On 26 May, after having deliberated, the Chamber relinquished jurisdiction forthwith in favour of the plenary Court (Rule 50). 13. Having taken note of the Government's agreement and the concurring opinions of the Commission and the applicant, the Court decided, on 28 September 1989, to proceed to judgment without holding a further hearing (Rule 26).", "AS TO THE FACTS I. PARTICULAR CIRCUMSTANCES OF THE CASE 14. Mr Georg Brozicek was born in Czechoslovakia and now resides at Steinalben in the Federal Republic of Germany, of which country he is a national. 15. On 13 August 1975 the municipal police of Pietra Ligure (Savona) detained him on the public highway shortly after he had torn down some small ornamental flags erected in connection with a fête organised by a political party.", "The police, who had intervened at the request of one of the organisers, took him to the police station because he did not have any identity papers with him and, according to their version of events, because he had to be protected against the hostility of the participants. On this occasion he wounded one of the police officers. On 14 August the carabinieri, who had also intervened on the previous day, submitted a report on the incident to the Savona Public Prosecutor's Office. On the same day Mr Brozicek sent a letter, in French, to the Police Chief (questore) of Savona, which was subsequently transmitted to the Public Prosecutor, who ordered its translation into Italian on 31 January 1976. 16.", "The Public Prosecutor's Office opened an investigation and on 23 February 1976 sent to the applicant - by registered letter requiring acknowledgment of receipt and bearing the address of the applicant's then residence in Nuremberg - a \"judicial notification\" (comunicazione giudiziaria; see paragraphs 24-25 below). It informed him that proceedings had been instituted against him for the offences of resisting the police and assault and wounding (Articles 337 and 582 of the Criminal Code). In addition, it invited him to appoint a defence lawyer of his choice and informed him that if he failed to do so Mr T. S., avvocato, would be appointed by the authorities. On 1 March 1976 Mr Brozicek returned the document to the Public Prosecutor's Office with the following note (translation from the German): \"I return the enclosed document to the sender as I find it difficult to understand. In lodging my detailed complaint of 14 August - on which no action has yet been taken even though the facts complained of could have far-reaching consequences - and in all correspondence to date with the Italian authorities, I have always expressly requested that either the mother tongue of the persons concerned or one of the international official languages of the United Nations be used, in order to avoid from the outset any risk of misunderstanding.\"", "The Public Prosecutor's Office received this letter on 3 March 1976. It did not send any reply and did not have the letter translated. 17. On 17 November 1978 the Public Prosecutor's Office sent to the applicant by registered letter requiring acknowledgment of receipt a second \"judicial notification\". In addition to the information contained in the first notification, it asked the applicant to provide an address for service in Italy (Article 177 bis of the Code of Criminal Procedure).", "On 5 December 1978 the German postal authorities returned the letter to the sender marked \"unclaimed\". The acknowledgment of receipt bore the name \"Brozicek\", in a different space to that provided for the addressee's signature. The Government maintained that it was the applicant's signature but he has always denied this; he claimed that he had not received the communication because he had just moved house. The expert opinion ordered by the Court (see paragraphs 5 and 8 above) did not resolve this question. 18.", "By an order (decreto) of 13 December 1978 the Public Prosecutor stated that it had not been possible to notify the applicant and that \"further enquiries at the place of birth and place of last residence\" had not produced any result. He appointed a defence lawyer and directed that all the documents for notification to the accused during the investigation should thereafter be lodged at the secretariat of the Public Prosecutor's Office. At the hearing before the European Court on 22 May 1989, the Government affirmed that the reference to further enquiries was probably an oversight. They maintained that the provision applied to the applicant was the second part of the second paragraph of Article 177 bis of the Code of Criminal Procedure (concerning an accused who has given no address for service, see paragraph 26 below), which does not require such enquiries. The Public Prosecutor summonsed Mr Brozicek to appear for examination on 30 December 1978, but to no avail, and, on that day, he asked the President of the Savona Regional Court to commit the applicant for trial.", "19. The trial was set down for 3 November 1980 but when the time came the proceedings had to be adjourned because the date of the hearing had not been notified to the accused. On 11 March 1981 the President of the Savona Court decided that any notification would be lodged with the court registry because the accused had not provided an address for service in Italy (Articles 170 and 177 bis of the Code of Criminal Procedure, see paragraph 26 below). He also appointed a lawyer to represent the accused. After an adjournment for reasons extraneous to the proceedings, the trial took place on 1 July 1981.", "On that date the applicant was convicted in absentia, sentenced to five months' imprisonment and ordered to pay the costs. The sentence was, however, suspended and no reference to the conviction was to be included in criminal-record certificates issued at the request of private individuals. 20. This decision too was notified to the applicant by being lodged at the court registry because, still pursuant to Article 177 bis of the Code of Criminal Procedure, the president of the court had again noted, on 2 July, that Mr Brozicek had not provided an address for service in Italy. As there was no appeal, the judgment became final on 7 July 1981.", "21. On 5 May 1984 the applicant received a letter from the Principal Public Prosecutor at the German Federal Court of Justice (Bundesgerichtshof). The letter informed him of his conviction by judgment of the Savona court of 1 July 1981, which had become final on 7 July 1981, and that the conviction had been entered in the German criminal records (Article 52 of the Criminal Records Act, Bundeszentralregistergesetz). 22. On 7 May Mr Brozicek lodged an application with the Commission, stating, inter alia, that \"the possibilities for appealing [were] manifestly time-barred under Italian law ...\".", "On the same day he also wrote to the German Ministry of Foreign Affairs and the Italian Ministry of Justice. In his letter to the German Ministry he requested its assistance in securing, as soon as possible, the rectification or the annulment of the Savona judgment. In his letter to the Italian Ministry he claimed that he had not received any information in his own language on the trial and had been unable to defend himself because neither the indictment nor the judgment had been notified to him. He asked what possibilities of appealing against the decision were open to him. On 5 October the Italian Ministry replied that he could lodge an appeal against the judgment outside the normal time-limits (hereinafter referred to as a \"late appeal\"; see paragraph 26 below), if the notification to him had not been lawfully made, and seek a retrial.", "The applicant did not avail himself of either of these possibilities. 23. The German Ministry of Foreign Affairs instructed the Consulate General of the Federal Republic of Germany at Genoa to determine whether there was any possibility of appealing against the judgment of 1 July 1981. As the first result of its communications with the Savona court, the Consulate forwarded to the applicant, on 10 July 1989, a photocopy of the Italian text of the judgment, which was for the most part handwritten. Mr Brozicek acknowledged receipt of this text by a letter dated 18 July 1984.", "II. DOMESTIC LAW A. Judicial notification 24. A judicial notification is the document by which the judicial authorities inform the person suspected of having committed an offence that an investigation has been opened and invite him to appoint a defence lawyer of his choice and to provide an address for service. It must specify the legal provisions infringed and the date of the alleged offence.", "25. The investigating judge, in the event of a \"formal\" investigation, or the public prosecutor, where the investigation is \"summary\", must send the notification at the very beginning of their investigation (Articles 304 and 390 of the Code of Criminal Procedure). The notification must be sent by registered letter requiring acknowledgment of receipt. If the letter is not delivered because the addressee is untraceable (irreperibile), a bailiff must serve the notification in accordance with the normal procedure (Articles 168-175 of the Code of Criminal Procedure). B. Notifications, trial in absentia (contumacia) and \"late appeal\" (appello apparentemente tardivo) 26.", "In its Foti and Others judgment of 10 December 1982 and its Colozza judgment of 12 February 1985 (Series A no. 56, p. 12, §§ 33-36, and Series A no. 89, p. 11, §§ 18-19, and pp. 12-13, §§ 21-23) the Court gave a brief description of the Italian legislation then in force as regards the notification to a person or an accused who is \"untraceable\", trial in absentia (contumacia) and \"late appeal\" (appello apparentemente tardivo). In this regard Article 177 bis of the Code of Criminal Procedure provides as follows (translation from the Italian): \"Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad, the Public Prosecutor or trial judge (pretore) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted.", "This formality shall neither suspend nor delay the proceedings. Where the accused's address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate, the judge or the public prosecutor shall make the order (decreto) provided for in Article 170. The above provisions shall not apply where the issue of an arrest warrant is mandatory.\" The second sub-paragraph of Article 170 states that (translation from the Italian): \"The judge or the public prosecutor ... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved or proves impossible to carry out be effected by means of lodging the relevant documents at the registry of the judicial organ before which the proceedings are pending. The defence lawyer shall be informed without delay of any such notification.\"", "The possibility of lodging a \"late appeal\" was at the time derived from judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure, according to which (translation from the Italian): Article 500 \"In the case of in absentia proceedings, an extract of the decision or judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings, subject to the provisions of the third paragraph of Article 199.\" Article 199 \"... For the decisions or judgments referred to in Article 500, the period within which the accused may appeal shall begin to run from the notification of the decision or judgment. ...\" On the basis of these provisions the courts had consistently held that if the notification of an extract of a decision or judgment delivered in absentia was not lawful because it had been wrongly assumed that the accused did not intend to participate in the proceedings, the person concerned could, within three days, contest such notification and challenge the finality of the decision in question. If he was successful in so doing, he was accorded a new time-limit within which to appeal against the said decision. The new Code of Criminal Procedure, which came into force on 24 October 1989, now makes express provision for this possibility of \"re-establishing the time-limit\".", "PROCEEDINGS BEFORE THE COMMISSION 27. Mr Brozicek lodged his application with the Commission on 7 May 1984 (no. 10964/84). He alleged a breach of Article 6 § 3 (a) (art. 6-3-a) of the Convention inasmuch as he had not been informed in a language which he understood of the nature and the cause of the accusation against him.", "He also complained of a violation of Article 6 § 1 (art. 6-1) on the ground that, since he had been tried in absentia without having any opportunity to defend himself, he had not had a fair trial. 28. The Commission declared the application admissible on 11 March 1987. In its report of 22 March 1988 (Article 31) (art.", "31), it expressed the opinion that there had been a violation of Article 6 § 3 (a) (art. 6-3-a) (by eleven votes to one, with two abstentions) and of Article 6 § 1 (art. 6-1) (by thirteen votes, with one abstention). The full text of its opinion and of the two separate opinions accompanying it is reproduced as an annex to this judgment[*]. AS TO THE LAW I.", "THE GOVERNMENT'S PRELIMINARY OBJECTION 29. According to the Government, Mr Brozicek had three domestic remedies available to him which he failed to exhaust. These were: the right to lodge a \"late appeal\"; the right to apply for a review of the compatibility of Articles 170 and 177 bis of the Code of Criminal Procedure with Articles 10 and 24 of the Constitution; and the possibility, with regard to the complaint concerning the use of language, of pleading, at the stage of the proceedings brought before the Savona Regional Court and thereafter, the nullity of the judicial notification and of other documents relating to the investigation. A. Admissibility 30. In accordance with its established case-law, the Court has jurisdiction to examine preliminary objections of this kind.", "However, amongst other conditions, the State in question must have raised them before it not later than the expiry of the time-limit laid down for the filing of its memorial (Rule 47 § 1 of the Rules of Court). The second limb of the Government's submission does not satisfy this requirement as regards the possibility of relying on Article 10 of the Constitution. To this extent, it must therefore be dismissed as out of time (see, inter alia, the Barberà, Messegué and Jabardo judgment of 8 December 1988, Series A no. 146, p. 27, § 56). B.", "The merits of the remainder of the objection 1. A \"late appeal\" 31. In the Government's view, the applicant could have entered a \"late appeal\" in order to contest the lawfulness of the notification to him of an extract of the judgment of 1 July 1981 by lodgement with the court registry and, consequently, to challenge the finality of the decision in question. This would have made it possible for him first to raise the question of the application in his case of the rules concerning accused persons residing abroad whose whereabouts are known and who have no address for service in the place where the proceedings are conducted (second possibility envisaged under the second paragraph of Article 177 bis of the Code of Criminal Procedure, see paragraph 26 above), and then to appeal against his conviction. The Commission considered nevertheless that the shortness of the time-limit to be complied with - three days from the notification of the judgment, or from the date on which the person concerned had adequate knowledge thereof - made the exercise of such a remedy purely theoretical in the present case.", "32. The only remedies that Article 26 (art. 26) of the Convention requires to be exhausted are those that are available and sufficient and relate to the breaches alleged. It falls to the respondent State to establish that these various conditions are satisfied (see, inter alia, the Ciulla judgment of 22 February 1989, Series A no. 148, p. 15, § 31).", "In the circumstances of the case, the Court does not consider that the appeal in question was sufficiently available. At the time, the possibility of bringing such an appeal was not expressly provided for in the legislation, but was based only on judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure in the version then in force (see paragraph 26 above). In addition, in view of the fact that the judgment of 1 July 1981 was not notified to Mr Brozicek in person,the point of time at which the three-day period for lodging notice of intention to appeal began to run was open to doubt. This was acknowledged to some extent by the Government inasmuch as they stated that it was \"probable\" that the dies a quo was not 5 May 1984 but a date in July 1984, when the applicant received a copy of the judgment (see paragraph 23 above). To avoid all risk, the applicant would have had to lodge notice of his intention to appeal within the three days following 5 May, which he would have been able to do only if, within this time, he had consulted a lawyer, or some other person, conversant with Italian criminal procedural law.", "In the Court's view, he could not reasonably have been required to do so, especially since when he learned of his conviction the judgment had been final for a number of years. 33. Nor does the \"late appeal\" appear capable of remedying in this case the violations alleged. The appeal court would have had to have declared it admissible before it was competent to review the conviction. To this end, it would have been necessary for the applicant to satisfy the appeal court that the Savona Regional Court had been wrong to conclude that he had not wanted to give an address for service in that town.", "Moreover, the case-law cited by the Government does not establish that the remedy in question could have been effective in Mr Brozicek's case. In this respect, the Court refers to its Colozza judgment of 12 February 1985 (Series A no. 81, p. 16, § 31). 2. Application for review of the compatibility of Articles 170 and 177 bis of the Code of Criminal Procedure with Article 24 of the Constitution 34.", "In the Government's submission, the applicant could at any time have requested a review of the compatibility of Articles 170 and 177 bis of the Code of Criminal Procedure with Article 24 of the Constitution. By so doing he would have \"reactivated the proceedings\". The Court would observe that in the Italian legal system an individual is not entitled to apply directly to the Constitutional Court for a review of the constitutionality of a law. Only a court which is hearing the merits of a case has the possibility of making a reference to the Constitutional Court, at the request of a party or of its own motion. Accordingly, such an application cannot be a remedy whose exhaustion is required under Article 26 (art.", "26) of the Convention. Furthermore, the application would in practice have had to be attached to a \"late appeal\", which the Court has found not to be sufficiently available and effective in this case (see paragraphs 32-33 above). 3. The possibility of pleading the nullity of the judicial notification and other documents relating to the investigation 35. According to the Government, the applicant could have pursued in the domestic courts his complaint concerning the use of Italian in the judicial notification or in the notice prescribed in Article 177 bis of the Code of Criminal Procedure.", "The Court has difficulty in seeing how he could have formulated such a complaint in the Savona Regional Court since he maintains that he was not duly informed of the proceedings instituted against him. As regards the possibility of raising the question in connection with a \"late appeal\", the Court refers to the last sub-paragraph of the preceding paragraph. 4. Conclusion 36. It follows from the foregoing that the preliminary objection is in part out of time and for the rest unfounded.", "II. THE ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6) 37. Mr Brozicek alleged the violation of paragraphs 1 and 3 (a) of Article 6 (art. 6-1, art.", "6-3-a), which are worded as follows: \"In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing by [a] tribunal ... . ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ... .\" It is in the Court's view appropriate to examine in the first place the arguments based on paragraph 3 (a) (art.", "6-3-a). A. Paragraph 3 (a) (art. 6-3-a) 38. The applicant claimed that he had not been informed, \"in a language which he [understood]\", of the institution of criminal proceedings against him. In addition, the judicial notification of 23 February 1976 (see paragraph 16 above) did not in his opinion contain \"information in detail\" of the \"nature and cause of the accusation\".", "The Court notes that this document constituted an \"accusation\" within the meaning of Article 6 (art. 6) (see the Corigliano judgment of 10 December 1982, Series A no. 57, p. 14, § 35). 39. After having received the judicial notification of 23 February 1976, the applicant wrote to the Savona Public Prosecutor's Office, telling them that he had difficulty in understanding the contents of this communication for linguistic reasons.", "He requested it to use his mother tongue or one of the official languages of the United Nations (see paragraph 16 above). The judicial authorities did not reply to him. They continued to draw up the documents intended for Mr Brozicek only in Italian. They made no reference whatsoever to the language problem, except in the judgment of 1 July 1981, in which the Savona Regional Court attributed to the accused a fair knowledge (discreta padronanza) of Italian. 40.", "According to the Commission, the authorities did not take steps to verify that the applicant understood Italian, but merely presumed that he understood the substance of the judicial notification. The Government disputed this interpretation of the facts. They contended that it was absolutely clear from the documents in the case that Mr Brozicek had had an adequate knowledge of Italian. 41. In the Court's opinion, it is necessary to proceed on the basis of the following facts.", "The applicant was not of Italian origin and did not reside in Italy. He informed the relevant Italian judicial authorities in an unequivocal manner that because of his lack of knowledge of Italian he had difficulty in understanding the contents of their communication. He asked them to send it to him either in his mother tongue or in one of the official languages of the United Nations. On receipt of this request, the Italian judicial authorities should have taken steps to comply with it so as to ensure observance of the requirements of Article 6 § 3 (a) (art. 6-3-a), unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him.", "No such evidence appears from the documents in the file or the statements of the witnesses heard on 23 April 1989 (see paragraphs 5-7 above). On this point there has therefore been a violation of Article 6 § 3 (a) (art. 6-3-a). 42. On the other hand, the Court considers the allegation that the judicial notification of 23 February 1976 did not identify \"in detail ... the nature and cause of the accusation\" to be unfounded.", "This communication was intended to inform Mr Brozicek of the institution of proceedings against him; it sufficiently listed the offences of which he was accused, stated the place and the date thereof, referred to the relevant Articles of the Criminal Code and mentioned the name of the victim. B. Paragraph 1 (art. 6-1) 43. The applicant also relied on paragraph 1 of Article 6 (art. 6-1), claiming that he had not been given the possibility of participating in the trial in order to defend himself against the charges brought against him.", "He had therefore not received a fair hearing of his case. 44. The Commission shared this view. The Government, however, contested it. They maintained that the applicant had been informed of the existence of criminal proceedings by the notification of 23 February 1976 (see paragraph 16 above) and then by the communication, which he had not accepted, of 17 November 1978 (see paragraph 17 above).", "Accordingly, in their view, he had deliberately refused to answer for his actions in court and to exercise his rights. 45. The evidence does not establish that Mr Brozicek intended to waive his right to participate in the trial, a right \"not expressly mentioned in paragraph 1 of Article 6 (art. 6-1)\" but whose existence is shown by the \"object and purpose of the Article (art. 6) taken as a whole\" (see the Colozza judgment, cited above, Series A no.", "89, p. 14, § 27). The present judgment has already found that the judicial notification of 23 February 1976 did not satisfy one of the requirements of Article 6 § 3 (a) (art. 6-3-a) of the Convention. As regards that of 17 November 1978, the Court is not satisfied that that Mr Brozicek was aware of it. It was returned to the secretariat of the Savona Public Prosecutor's Office as unclaimed (see paragraph 17 above), in circumstances which remain uncertain.", "Furthermore, the expert consulted at the Government's request concluded that the acknowledgment of receipt did not bear the applicant's signature (see paragraphs 5, 8 and 17 above). Again, the President of the Savona Regional Court did not seek to notify Mr Brozicek in person of the summons to appear before his court. In accordance with Italian law, he ordered that it be lodged with the court registry (see paragraph 19 above), so that Mr Brozicek was deemed to have been informed of each document relating to the proceedings and was judged in absentia. 46. Accordingly, the trial was not fair within the meaning of Article 6 § 1 (art.", "6-1). III. APPLICATION OF ARTICLE 50 (art. 50) 47. Under Article 50 (art.", "50), \"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\" Mr Brozicek first requested the Court to declare the judgment of 1 July 1981 void and to order that it be struck out of his record. However, the Court is not so empowered under the Convention (see, inter alia, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 23, § 54). The applicant also sought compensation for damage and the reimbursement of costs and expenses.", "A. Damage 48. In the first place, he maintained that he had sustained pecuniary damage which he assessed at 1,300,000 Swiss francs. His claim in this respect is however based on circumstances unrelated to the violations found, and cannot therefore be entertained by the Court. He also claimed 200,000 Swiss francs for non-pecuniary damage.", "The Court recognises that the violations found must have caused him some degree of damage of this nature, but the finding of infringements of Article 6 (art. 6) constitutes in this case sufficient just satisfaction in this respect. B. Costs and expenses 49. Mr Brozicek sought, in addition, the reimbursement of the costs and expenses incurred by him before the Commission and subsequently the Court, in so far as they were not covered by the legal aid accorded to him.", "According to the Government, the fact that he had received legal aid meant that this claim had to be dismissed. In any event the applicant had not shown that his defence had necessitated the expenses indicated by him. 50. During the proceedings before the Commission, Mr Brozicek took the initiative of having two examinations carried out by handwriting experts. They cost him 1,027.27 Deutschmarks, which should be reimbursed to him, because in this case they constituted a normal means of obtaining evidence.", "The Court also admits the fee - 1,900 Swiss francs - paid to a Swiss lawyer instructed by the applicant, after the case had been referred to the Court, to secure a friendly settlement with the respondent Government. Finally, Mr Brozicek listed a number of expenses relating to travel, in particular to Strasbourg, photocopies, printing, telephone communications, postal charges, translation and the purchase of material. He calculated such expenses at a total of 5,260 Deutschmarks. In the Court's view, however, certain of these items were not genuinely necessary. Making an equitable assessment in accordance with Article 50 (art.", "50), it awards the applicant 3,000 Deutschmarks under this head. 51. It follows from the foregoing that the respondent State is to pay to the applicant a total of 4,027.27 Deutschmarks and 1,900 Swiss francs. FOR THESE REASONS, THE COURT 1. Dismisses by fifteen votes to five the objection of non-exhaustion of domestic remedies as regards the possibility of a \"late appeal\"; 2.", "Dismisses unanimously the remainder of the said objection; 3. Holds by fifteen votes to five that there has been a violation of paragraphs 3 (a) and 1 of Article 6 (art. 6-3-a, art. 6-1) of the Convention; 4. Holds unanimously, as regards the non-pecuniary damage sustained by the applicant, that the present judgment constitutes in itself adequate just satisfaction for the purposes of Article 50 (art.", "50); 5. Holds unanimously that the respondent State is to pay to the applicant in respect of costs and expenses 4,027.27 Deutschmarks (four thousand and twenty-seven marks and twenty-seven pfennigs) and 1,900 (one thousand nine hundred) Swiss francs; 6. Dismisses unanimously the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 December 1989. Rolv RYSSDAL President Marc-André EISSEN Registrar In accordance with Article 51 § 2 (art.", "51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: - joint dissenting opinion of Mr Thór Vilhjálmsson, Mr Pettiti, Mr Russo, Mr De Meyer and Mr Valticos; - separate opinion of Mr Martens. R.R. M.-A.E. JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI, RUSSO, DE MEYER AND VALTICOS (Translation) We consider that the domestic remedies were not exhausted in this case. The applicant could have appealed against the judgment convicting him delivered in Savona[1].", "He did not do so. He chose to apply to the Commission as early as 7 May 1984[2], barely two days after having learnt, on 5 May 1984, of the existence of the judgment[3] and more than two months before the earliest point at which the period prescribed for filing an appeal could have begun to run, since he did not in fact receive a copy of the judgment until between 10 and 18 July 1984[4]. If he was able to set in motion the Convention machinery so quickly, he could equally have taken the necessary steps to institute proceedings in the Italian appeal court in good time. His conduct is all the more difficult to understand because he has himself a certain amount of legal knowledge, since he was, as he has stated, a Doctor of Laws and former lawyer[5]. It was for him to obtain information and advice concerning the remedies available to him and he had ample time to do so.", "He had known, since 1976, that criminal proceedings had been instituted against him in Italy[6] and did not have to contact the Ministry of Justice[7] to obtain such information and advice. Moreover, it appears clearly from the facts of the case that the applicant never gave an address for service and never had the intention of so doing[8]. Contrary to the view which the majority seems to take in this respect[9], there could therefore be very little doubt as to the admissibility of the appeal. * * * As the applicant did not give the respondent State the opportunity to remedy, in its domestic legal system, the violation of his rights, in so far as there was a violation, we consider, for this very reason, that it is not possible to find such a violation. SEPARATE OPINION OF JUDGE MARTENS 1.", "The present case is a striking example of the practical consequences of the doctrine which was adopted by the Court in 1971 in its De Wilde, Ooms and Versyp judgment[10]. In that judgment the Court held that it had jurisdiction to examine preliminary objections as to admissibility, such as one based on non-exhaustion of local remedies, in so far as those objections had first been raised before the Commission. This doctrine has since been refined[11] and regularly applied[12]. The present case is rather simple as to its merits, but the preliminary objections which the respondent State reiterated before the Court raised difficult questions, both of interpretation of Article 26 (art. 26) of the Convention and of Italian law, and required, moreover, delicate factual assessments.", "Consequently the Chamber, after deliberations which occupied eleven judges for at least half a day, relinquished jurisdiction in favour of the plenary Court, whereupon twenty judges had to devote some further five hours to deliberations on these questions. This experience made me ask whether, under present conditions, the Court should abide by its aforementioned doctrine or should overrule its De Wilde, Ooms and Versyp judgment[13]. * * * 2. A court that is considering whether it should overrule its own case-law will have to ponder various aspects of that question. I will mention three.", "It will, firstly, have to assess whether the arguments invoked for the new ruling are definitely more convincing than those on which its existing case-law was based, for one should overrule only if one is convinced that the new doctrine is clearly the better law. Secondly, there is the policy side of the question to be looked into. Lastly, the court will have to consider how serious a blow overruling would be to legal certainty. I will make some remarks on each of these aspects. * * * 3.1 In my opinion the arguments against the Court's aforementioned doctrine are definitely more convincing than those on which that doctrine was based.", "3.2 The Court has based its doctrine mainly on the broad wording of Articles 45 and 46 (art. 45, art. 46) of the Convention and has inferred therefrom that \"once a case is duly referred to it, ... the Court is endowed with full jurisdiction and may thus take cognisance of all questions of fact and of law which may arise in the course of the consideration of the case\"[14] (my italics). The various dissenters in the De Wilde, Ooms and Versyp case have already shown that this interpretation of the term \"cases\" (\"affaires\") in Article 45 (art. 45) is hardly compatible with the wording of Articles 31, 32 and 48 (art.", "31, art. 32, art. 48) which rather seems to suggest that the term \"case\" (\"affaire\") means - as Judge Bilge put it - \"the question whether there has or has not been a violation of the Convention\"[15]. As those dissenters did not fail to stress, the economy of the Convention supports this construction of the term \"case\" (\"affaire\"): the system of the Convention would appear to be that it is for the Commission (exercising a judicial function) to make a final decision on admissibility and (exercising an advisory function) to express an opinion \"as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention\" (Article 31) (art. 31), whereupon the question \"whether there has been a violation of the Convention\" (Article 32) (art.", "32) shall be finally decided either by the Committee of Ministers or by the Court. The Court's later case-law enhances this argument based on the system of the Convention by admitting that it is the Commission's decision on admissibility which \"determines the object of the case brought before the Court\" and by considerably qualifying its above-quoted ruling on the extent of its jurisdiction by the words \"it is only within the framework so traced that the Court ... may take cognisance of all questions of fact or of law ...\"[16] (my italics). But neither this acknowledgement nor the repeated stressing that the \"framework\" or \"compass\" of the case is decisively \"delimited by the Commission's admissibility decision\"[17] has induced the Court to abandon the aforementioned doctrine. Yet it would seem clear that this doctrine is hard to reconcile with the delimitative force of the Commission's decision on admissibility! 3.3 One can look at this argument based on the system of the Convention from yet another angle.", "The Court is not to act as a court of appeal from the Commission and has not been empowered to quash its decisions. It does not fit in with this system that (as is possible under the Court's doctrine) in one and the same case the Commission should reject the preliminary objection, accept the petition and express the opinion that there has been a violation, while the Court should find that objection well-founded and therefore hold that it is unable to take cognisance of the merits of the case. It is not to be assumed that the Convention makes it possible for a case to end with two contradictory decisions. 3.4 In its De Wilde, Ooms and Versyp judgment the Court also relied especially on the importance of the exhaustion rule which \"delimits the area within which the Contracting States have agreed to answer for wrongs alleged against them before the organs of the Convention\"[18]. It even went so far as to suggest that the observance of this rule was as important to States as the observance of the rights and freedoms guaranteed in the Convention was to individuals; it implied thereby that just as the question whether the latter rights had been respected is examined by both the Commission and the Court, so too the question whether local remedies have been exhausted should be examined by both Convention organs.", "I cannot accept this equation. In my opinion there is a marked difference in kind between the fundamental rights and freedoms of individuals guaranteed in the Convention and the traditional privilege of States of being dispensed \"from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system\"[19]. The implied argument for a double control is therefore not only totally unconvincing for me, but rather militates against the Court's doctrine: that doctrine is apt to create the wrong impression that the rules of Article 26 (art. 26), rules that are mainly procedural devices for sifting purposes, are equal in status and importance to the rights and freedoms under the Convention. 3.5 There is a further - and in my eyes rather weighty - argument against the aforementioned doctrine of the Court: that doctrine creates a disparity between the parties, because when the Commission accepts a preliminary objection as to admissibility based on non-exhaustion of domestic remedies, the applicant (who, ex hypothesi, is a victim of a violation)[20] cannot attack that decision before the Court, but in the reverse case the supposedly wrong-doing State can.", "Under a convention which stresses that one of the basic principles of fair trial is equality of arms, that seems at least odd. 3.6 To round off I would draw attention to the fact that the aforementioned doctrine of the Court has also been criticised, sometimes rather severely, by quite a number of learned writers[21]. In my opinion this too is an aspect to be taken into account when considering whether or not the Court should overrule its De Wilde, Ooms and Versyp judgment. * * * 4.1 Coming now to the policy side of the problem, I propose to consider various practical arguments pro and contra the doctrine under discussion. 4.2 The first practical argument that comes to mind is decidedly contra: it is very undesirable that an applicant, who after some years of battling has won his case before the Commission, should find himself, after a further rather long period of stress, denied a judgment on the merits.", "4.3 A second practical argument is pro: it will be clear that the main rationale of Article 26 (art. 26) is to provide means for the task of sifting which Article 27 (art. 27) assigns to the Commission; it will also be clear that for the case-load of the Court it is not immaterial how the Commission interprets and applies the rules of Article 26 (art. 26). Therefore, there is a certain interest for the Court in being able to control the Commission in this respect.", "It must be noted, however, that this argument is of a purely theoretical character. It is true that in 1971, when the De Wilde, Ooms and Versyp judgment was rendered, the Court may have felt some uncertainty as to whether or not the Commission held the same views as the Court with regard to the interpretation and the application of the principle of prior exhaustion of domestic remedies. But at that time the case-load of the Court was nearly non-existent[22], so that for practical purposes it would have been without any importance if the Commission were to have interpreted and applied Article 26 (art. 26) more leniently than the Court deemed fit. And now, nearly twenty years later - when the proper functioning of the Court would, having regard to its present case-load, be seriously endangered by such interpretation and application -, experience has taught that in this respect there do not exist serious differences of opinion between the Commission and the Court: in all those years the Court has only twice come to a conclusion that differed from that of the Commission[23]!", "4.4 A third, and in my view decisive, practical argument is contra. I refer again to the continuing and rather alarming increase in the Court's case-load which, were the Commission to become a semi-permanent body, would only become worse. This increase should, in my opinion, prompt re-thinking of accepted doctrines. Abandonment of the doctrine under discussion would result in a considerable saving of time and energy. This is because preliminary objections are argued before the Court in many cases and quite often raise difficult and therefore time-consuming questions: firstly it may be necessary to go very carefully over the files of the Commission to ascertain whether or not the objection has already been raised - in substance (!)", "- before the Commission; then, questions may arise as to the interpretation of the many subtly connected rules that we conveniently, but with some over-simplification, designate as the exhaustion rule; and, lastly, it may be necessary to go into intricate questions of domestic law and to make difficult factual assessments. Moreover, most of these questions will already have been answered by the other Convention organ, which has far more practice and therefore experience in this field than the Court. The time and energy spent on these questions could and should be devoted to the Court's specific task of ensuring the observance of the rights and freedoms guaranteed in the Convention. * * * 5. I then come to legal certainty.", "Of course it may be said that every overruling affects legal certainty, but there are differences of degree. A court should not overrule an interpretation of a rule of civil law on which society has based its contracts. But it would seem to me that the rules we are concerned with here do not enter into that very special category where overruling is almost unthinkable. It may be true that without the rule of exhaustion some, or perhaps even many, Contracting States would hardly have been willing to accept the system of \"the international machinery of collective enforcement established by the Convention\"[24]. But one cannot seriously maintain that they accepted that machinery in the expectation that the observance of that rule would be tested twice.", "And even if somewhere reliance was placed on such an expectation, it would not seem to deserve protection: at least I cannot see that real State interests which are seriously worthy of protection would be harmed if the Court were to decide that, once the case is brought before it, respondent States would no longer be afforded an opportunity to escape from having to answer as to the merits. * * * 6. Having considered these various aspects of the question whether, under present conditions, the Court should overrule its De Wilde, Ooms and Versyp judgment of 1971, I have come to the conclusion that it should be answered in the affirmative. For the sake of completeness I would like to add that it should, of course, not be inferred from the above considerations that in those - presumably rare - cases in which the non-exhaustion issue cannot be separated from the merits the Court would lack jurisdiction to take cognisance of that issue as well. 7.", "For these reasons I have voted in favour of rejecting the Italian Government's objections as to admissibility only under the proviso that in my opinion the Court ought to refuse to take cognisance of them. [*] Note by the registry. The case is numbered 7/1988/151/205. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.", "[*] Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (volume 167 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry. [1] Paragraph 26 of the judgment. [2] Paragraph 1 of the judgment. [3] Paragraph 21 of the judgment.", "[4] Paragraph 23 of the judgment. [5] See his letter of 8 July 1988, requesting leave to present his own case before the Court. [6] Paragraph 16 of the judgment. [7] Paragraph 22 of the judgment. [8] Paragraphs 17 to 20 of the judgment.", "[9] Paragraph 33 of the judgment. [10] Judgment of 18 June 1971, Series A no. 12, pp. 29-31, §§ 47-55. [11] See the Artico judgment of 13 May 1980, Series A no.", "37, p. 12, § 24, and the Van Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 13, § 25: \"insofar as the respondent State may have first raised them before the Commission, in principle at the stage of the initial examination of admissibility, to the extent that their character and the circumstances permitted.\" [12] See, for example, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 17, § 32, and, as the most recent instance, the Bricmont judgment of 7 July 1989, Series A no. 158, p. 27, § 73.", "[13] As far as I am aware, there are no examples of explicit overruling in the Court's case-law. That does not mean, of course, that the Court would hold that it lacks power to overrule its own precedents; it did so implicitly in paragraph 78 of its above-mentioned De Wilde, Ooms and Versyp judgment where it in fact retracted what it had said in paragraph 24 of its Neumeister judgment of 27 June 1968 (Series A no. 8, p. 44). (I owe this reference to the kind help of our Registrar.) [14] See the above-mentioned De Wilde, Ooms and Versyp judgment, p. 29, § 49.", "[15] See the above-mentioned De Wilde, Ooms and Versyp judgment, p. 52; see to the same effect Judge Wold at p. 57. [16] See the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 63, § 157. See also the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 27, § 71.", "[17] See the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 23, § 48. [18] See p. 29, § 50. [19] Quotation from the above-mentioned De Wilde, Ooms and Versyp judgment, p. 29, § 50. [20] I refer to the working hypothesis mentioned in paragraph 27 of the aforementioned Van Oosterwijck judgment (cited in note 2).", "[21] See, for example: Jacobs, The European Convention on Human Rights (1975), pp. 263/264; Pelloux, Annuaire français de droit international, 1972, pp. 444-445 (who rightly points out that the most likely interpretation of Article 45 (art. 45) is to assume that it refers to the conditions set out in Articles 46, 47 and 48 art. 46, art.", "47, art. 48)); Trechsel, Zeitschrift für Schweizerisches Recht, 1975, pp. 422-423; A.A. Cançado Trindade, Human Rights Journal, 1977, pp. 149 et seq. ; G. Cohen Jonathan, Cahiers de droit européen, 1979, p. 480; D. Sulliger, L'épuisement des voies de recours internes en droit international général et dans la Convention européenne des droits de l'homme (1979), pp.", "152-154; Van Dijk and Van Hoof, Theory and practice of the European Convention on Human Rights (1984), pp. 123-128; Frowein-Peukert, Europäische Menschenrechtskonvention, p. 448. [22] Since 1959 only 10 cases had been brought before the Court. [23] See the Van Oosterwijck judgment, referred to in note 2, and the Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, pp.", "28-29, § 59. [24] Quotation from the Court's judgment of 23 July 1968 in the case \"relating to certain aspects of the laws on the use of languages in education in Belgium\", Series A no. 6, p. 35, § 10." ]

[ "FIRST SECTION CASE OF AMIROV v. RUSSIA (Application no. 51857/13) JUDGMENT STRASBOURG 27 November 2014 FINAL 20/04/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Amirov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Isabelle Berro-Lefèvre, President,Elisabeth Steiner,Khanlar Hajiyev,Mirjana Lazarova Trajkovska,Erik Møse,Ksenija Turković,Dmitry Dedov, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 November 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "51857/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Said Dzhaparovich Amirov (“the applicant”), on 12 August 2013. 2. The applicant was represented by Mr D. Khoroshilov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant alleged, in particular, that he was not receiving adequate medical assistance while in detention and that he had been remanded in custody without valid reasons. 4. On 16 August 2013 the President of the First Section, acting upon the applicant’s request of 13 August 2013, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should be immediately examined by medical experts independent from the prison system with a view to determining (1) whether the treatment he was receiving in the temporary detention facility was adequate for his condition; (2) whether his state of health was compatible with the conditions of his detention; and (3) whether the applicant’s condition required his placement in a hospital. 5. On 29 August 2013, having received the Government’s reply to the Court’s letter of 16 August 2013, the President of the First Section reminded the Government of the interim measure applied under Rule 39 of the Rules of Court.", "The Government’s attention was also drawn to the fact that the failure of a Contracting State to comply with a measure indicated under Rule 39 could entail a breach of Article 34 of the Convention. 6. On 21 October 2013 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 7.", "The applicant was born in 1954 and prior to his arrest lived in the town of Makhachkala, Dagestan Republic. He is currently being detained in a temporary detention facility in Rostov-on-Don. A. Background. The applicant’s detention 8.", "In 1993 the applicant, at the material time the deputy Prime Minister of the Dagestan Republic, survived an assassination attempt. However, his spine was badly wounded and he became paralysed. He cannot walk and is confined to a wheelchair. He also lost his ability to urinate or defecate without special medical procedures, such as catheters and enemas. 9.", "Since 1998 the applicant has been mayor of Makhachkala, the Dagestan Republic. 10. Сriminal proceedings were instituted against the applicant on suspicion of organised aggravated murder and attempted murder of State officials, including several prosecutors, investigators, a member of the town council and the head of the investigative committee in the Dagestan Republic. The investigation was assigned to a group of senior investigators and criminologists from the investigative committees of various regions of the Russian Federation and led by the deputy head of the Russian Federal Investigative Committee, a major-general. The applicant was arrested on 1 June 2013.", "11. On the following day the Basmanniy District Court of Moscow ordered the applicant’s detention pending trial, citing the gravity of the charges against him and the risk that he might abscond, interfere with the investigation, in particular influence witnesses, and reoffend. The District Court’s decision was based on the applicant’s official powers and his significant contacts with various persons involved in the investigation, as well as his consequent ability to influence the investigation. The court referred to the case-file materials, according to which a number of defendants arrested on suspicion of participating in the murders were also public officials and law-enforcement agents, investigators or police officers. They had identified the applicant as the “master-mind” of the murders, had provided details of the murders and had argued that certain victims had been murdered in retaliation for their failure to obey the applicant’s orders.", "12. At the same time, the District Court dismissed the applicant’s arguments pertaining to his poor state of health, his stable family situation, his age and his standing in the community, having considered that they did not outweigh the reasons warranting his detention. The District Court was also not convinced by the description given by the head of the Makhachkala police department portraying the applicant as “an example of compliance with the law and public order”. 13. The decision of 2 June 2013 was upheld on appeal on 3 July 2013 when the Moscow City Court found the District Court’s finding reasonable and convincing.", "The City Court also noted that no alternative measure, such as house arrest or a written undertaking, could ensure the proper course of the criminal proceedings. 14. On 26 July 2013 the Basmannyy District Court extended the applicant’s detention until 11 November 2013, having again linked the gravity and nature of the charges against him, as well as his standing in society, to the likelihood that he would obstruct the course of justice, reoffend or abscond. The District Court once again relied on the applicant’s connections to support the conclusion that if released he would tamper with the evidence. At the same time, the District Court took into account a medical opinion issued on 17 July 2013 (cited in detail below), according to which the applicant’s state of health did not preclude his detention in the conditions of an ordinary detention facility.", "It also noted that there was no evidence that the authorities had delayed the pre-trial investigation. The District Court concluded by stressing that the case was particularly complex, involved a large number of defendants and required a series of investigative steps to be taken. 15. On 20 September 2013 new charges were brought against the applicant. He was charged with firearms trafficking and attempting to organise a terrorist attack on a public official, his political rival.", "According to the investigation, the applicant and his accomplices had intended to shoot down, with a portable anti-aircraft rocket launcher, a civilian aircraft in which the public official was to travel from Makhachkala to Moscow with other passengers. 16. On 7 November 2013 the Basmannyy District Court accepted the investigators’ request to extend the applicant’s detention again until 28 February 2014. The District Court noted the gravity of the charges, including the new ones, and the fact that the applicant was facing a sentence of up to life imprisonment. It once again cited the risks of the applicant absconding, reoffending and obstructing the course of justice, and expressed concern for the safety of the witnesses and victims.", "The District Court noted that the investigation of certain criminal offences with which the applicant was charged was at an active stage and that the risk of his interfering with the investigation, if he were released, was well-founded. More than eleven defendants had been arrested and certain suspects were yet to be apprehended. The District Court placed particular weight on the complexity of the case and the progress that the investigators were making with it. 17. The District Court also examined in detail the arguments put forward by the defence in favour of the applicant’s release and the application of a more lenient measure of restraint.", "It concluded that neither his family ties nor his state of health outweighed the reasons for his continued detention. In particular, the District Court relied on the medical opinions of 17 July and 7 August 2013, which had found that the applicant’s illness was not among those listed in Governmental Decree no. 3 of 14 January 2011 preventing the detention of a suspect. It further stressed that on a daily basis at least three medical specialists from municipal and State medical facilities (“generalists, surgeons, neurologists, urologists, endocrinologists, proctologists, an infectious diseases specialist, and a rehabilitation specialist”) had examined the applicant and that he had received the prescribed drug treatment in full. Moreover, he had undergone all the necessary laboratory testing and clinical examinations in certified civilian laboratories in Moscow and on 5 November 2013 he was to undergo yet another expert examination to determine whether he was suffering from any illness warranting his release.", "Having cited a long list of the applicant’s illnesses, the District Court noted that there was no evidence that his condition had deteriorated or that he required treatment in a specialised medical facility. The District Court dismissed as unreliable various expert opinions and medical records prepared by specialists, including foreign ones, in various related fields of medicine and produced by the defence in support of their argument that the applicant’s life was being put at risk by his prolonged detention in the conditions of an ordinary detention facility and in the absence of adequate medical assistance. 18. On 25 February 2014 the Basmannyy District Court extended the applicant’s detention until 1 June 2014. Having again assessed the materials presented to it by the investigation and the defence, the District Court concluded that the risks of the applicant influencing witnesses, reoffending, obstructing the investigation by other means and absconding were still present.", "In particular, the criminal proceedings against the applicant were at a crucial stage of collecting evidence and there was a risk that, using his connections in the criminal underworld, the applicant might try to influence witnesses and victims who feared him. The District Court also cited the medical reports of 17 July, 7 August and 8 November 2013, which supported its conclusion that the applicant’s state of health did not preclude his further detention. 19. It appears that the applicant’s detention was further extended. However, neither party provided the Court with an update.", "20. On 9 July 2014 the North-Caucasian Military Court found the applicant guilty of conspiring to organise a terrorist attack and sentenced him to ten years’ imprisonment. The applicant was stripped of all State awards and commendations. It appears that the criminal proceedings on the remaining charges against the applicant are still pending. B.", "The applicant’s medical condition 21. Numerous medical certificates and expert opinions submitted by the parties show that the applicant is suffering from a spinal cord injury, paraplegia, chronic urinary tract infection, chronic pyelonephritis (kidney infection), chronic urinary retention, rectal prolapse (a condition in which the rectum protrudes out of the anus), paraproctitis (an inflammation of the cellular tissues surrounding the rectum), ischemic heart disease, chronic heart failure, hypertension, a thyroid gland disease, hepatitis C and non-insulin-dependent diabetes. 22. At the request of the applicant’s representatives a panel comprising experts in neurology, urology and general medicine examined the applicant’s medical records dating from the period between 2001 and 2008. Their report dated 2 July 2013 found that, due to his inability to satisfy his most basic needs (such as moving, urinating or defecating) without help and to his very serious diseases, the applicant required constant medical supervision, treatment and assistance and that he should therefore be placed in a specialised medical facility.", "His detention in a temporary detention facility could aggravate his condition and, in the absence of a swift reaction to such an aggravation, could result in his death. The report also found that the applicant was suffering from diseases which, according to Governmental Decree no. 3 of 14 January 2011, were incompatible with detention. 23. On 17 July 2013 a panel of three doctors from State hospital no.", "20 in Moscow examined the applicant at the investigator’s request. Having studied the applicant’s medical history, the results of his recent clinical blood and urine analyses, as well as the results of his ultrasound scan and MRT examinations, the doctors confirmed the diagnoses and found that the applicant “was not suffering from any of the serious diseases included in the list of serious illnesses precluding detention of a suspect or an accused”. The report did not indicate the field of medicine in which the doctors specialised. 24. In response to a request by the investigator, on 25 July 2013 the director of the medical unit of temporary detention facility (SIZO-2) in Moscow, where the applicant was detained, prepared a certificate describing the applicant’s state of health.", "Citing extracts from the medical records, the director reported that the applicant was examined by him almost every day and also by various specialist doctors, including a urologist, a neurologist, a surgeon, a cardiologist and an endocrinologist. Blood and urine tests were regularly performed. He was prescribed and administered various medications. The applicant used disposable catheters to urinate. He performed that procedure himself, as he had done before his arrest, up to ten times a day without the facility administration having the possibility of ensuring the requisite level of asepsis.", "An enema was carried out by a doctor two or three times a week to make the applicant defecate. The applicant’s condition was stable and no deterioration in his health had been noted, although he had continued to raise various health complaints. 25. At the same time, the director of the medical unit also noted that, because the applicant was confined to a wheelchair, he could not be transported to the medical unit of the detention facility. He was therefore held in an ordinary cell where he was visited by the doctors and where all the necessary medical procedures were performed.", "In particular, the neighbouring cell which was used to perform the enemas was not suitable for that medical procedure as it was difficult to ensure the requisite sterility. The director stressed that lack of sterility could result in a serious complication. 26. The applicant’s lawyers submitted the medical report of 17 July 2013 for assessment by two medical specialists: a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Mr K.; and a member of the Russian and International Neurosurgeons’ Association, academician and highly respected professor-neurosurgeon, Mr S. On 25 July 2013 the two experts issued their review of the report. Having noticed the lack of information on the medical qualifications and specialisation of the three doctors who had issued the report, the two experts considered that the report contained a number of “significant and important contradictions”.", "In particular: - a urologist had not examined the applicant or participated in the preparation of the report of 17 July 2013, even though the applicant was suffering from a serious urological disorder; - although the three doctors had been provided with a complete set of medical records comprising the applicant’s medical history, including those related to his injuries and complications, the report was only based on “fragments of that information”; major complications arising from the applicant’s condition, such as chronic cystitis and pyelonephritis, remained unassessed; - Governmental Decree no. 3 of 14 January 2011 listed, among the serious illnesses precluding the detention of a suspect, “serious progressive forms of atrophic and degenerative illnesses of the nervous system accompanied by a stable disorder of the motor, sensory and vegeto-trophic functions”, which fully corresponded to the applicant’s diagnosis. However, that medical condition had not been taken into account by the three doctors who had prepared the report of 17 July 2013; - the applicant was also suffering from a life-threatening post-traumatic pathology of the kidneys and urinary tracts. However, despite the fact that a similar condition was also listed by the Governmental decree among the illnesses precluding detention, the three doctors had paid no attention to it. 27.", "The two experts concluded that the report of 17 July 2013 was incomplete and was not objective, as it did not fully reflect the “true picture of [the applicant’s] pathology, which undoubtedly fell within the serious illnesses precluding detention pending trial, as determined by Governmental Decree no. 3 of 14 January 2011”. 28. On 7 August 2013 the three doctors from hospital no. 20 issued another report confirming the findings in their previous report of 17 July 2013.", "The doctors again concluded that the applicant’s condition did not warrant his release as he was not suffering from any illness listed in Governmental Decree no. 3. The findings of the two reports were similar, the only difference being that part of the second report was based on more recent clinical tests and examinations of the applicant. C. Rule 39 request 29. On 13 August 2013 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his transfer to a specialised medical facility as an interim measure.", "30. The applicant claimed that the medical assistance he was receiving in the temporary detention facility was insufficient in view of his very serious diseases, which required constant medical supervision by specialised medical staff. The facility’s medical staff were not competent to deal with such serious conditions. The treatment he was receiving there did not correspond to the treatment he had received before his arrest. Moreover, he was unable to satisfy his most basic needs without help.", "In particular, when he wanted to defecate, he had to wait, suffering, until an external specialist was called, as the facility staff were not qualified to carry out an enema. According to the applicant, such inadequate medical assistance could result in a brutal aggravation of his condition and ultimate death. 31. On 16 August 2013 the Court decided to indicate to the Russian Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts independent from the prison system with a view to determining: (1) whether the treatment he was receiving in the detention facility was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a detention facility; and (3) whether his current condition required his placement in a hospital. 32.", "On 26 August 2013 the Government responded to the Court’s letter of 16 August 2013, having submitted a handwritten copy of the report prepared when the applicant was examined on admission to the detention facility SIZO-2 in Moscow; documents showing that the detention facility was licensed to provide medical services to inmates; certificates issued jointly by the head of the detention facility and the director of its medical unit describing the state of the applicant’s health and listing the medical procedures to which he had been subjected; extracts from the applicant’s medical history dating back to 2007; a certificate issued by the same two officials informing the Court that there was no risk to the applicant’s life and limb and that his condition was considered stable; a handwritten copy of the applicant’s medical record drawn up in the detention facility in which the most recent entry had been made on 21 August 2013 by a prison doctor; a record drawn up during the applicant’s stay in hospital no. 20 in Moscow from 11 to 17 July 2013, noting the applicant’s diagnosis and assessing his condition as moderately serious; a medical record from a psychiatric prison hospital where he had stayed from 12 to 17 June 2013 and where he had been treated for an “adaptation disorder affecting emotions and behaviour”; copies of the two medical reports issued on 17 July and 7 August 2013, respectively, by a medical commission of three doctors from hospital no. 20 who, having cited the applicant’s medical history and the results of his examinations by various specialists and clinical tests performed in the hospital in July 2013 and the beginning of August 2013, concluded that the applicant was “not suffering from an illness included in the list of serious illnesses precluding detention of suspected or accused persons”. 33. The Government also answered the three questions which, in its letter of 16 August 2013, the Court had asked them to address to independent medical experts.", "In particular, having provided an answer to the first question related to the adequacy of the applicant’s treatment, the Government stressed that the applicant had been placed under dynamic medical supervision by the medical personnel of the detention facility in relation to illnesses of the musculoskeletal, endocrine, hepatobiliary and urinary systems. They acknowledged that the applicant, as a wheelchair- bound inmate, required systematic care and permanent medical attention, which were being provided to him in a special cell. He was performing the remaining hygiene procedures himself. The Government submitted that the applicant received the necessary medical attention and that no additional medical procedures were required. 34.", "In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the detention facility, the Government stressed that the applicant was under the medical supervision of the personnel of the detention facility and was also being seen by various civilian medical specialists. The prison doctors were fully complying with the treatment plan developed by the civilian specialists. 35. In replying to the third question as to whether the applicant needed to be transferred to a hospital, the Government relied on the two reports issued by the three doctors from hospital no. 20 on 17 July and 7 August 2013, according to which the applicant was not suffering from any condition included in the list of serious illnesses precluding the detention of suspected and accused persons in detention facilities, as provided for by in Decree no.", "3 of the Government of the Russian Federation of 14 January 2011. 36. On 29 August 2013 the Court reminded the Russian Government that on 16 August 2013 an interim measure had been imposed under Rule 39 of the Rules of Court, in accordance with which independent medical experts were to examine the applicant and provide their expert opinion on the three questions, assessing the quality of the applicant’s treatment, the compatibility of his state of health with the conditions of the detention facility and the need to transfer him to a hospital. The Government’s attention was also drawn to the fact that the failure of a Contracting State to comply with a measure indicated under Rule 39 may entail a breach of Article 34 of the Convention. 37.", "On 13 September 2013 the Government submitted an English translation of their submissions of 26 August 2013. D. Developments following the application of Rule 39 and communication of the case to the Government 38. The applicant submitted a large number of medical reports and opinions issued by various Russian and foreign experts. In particular, he provided the Court with a copy of an opinion issued by Dr P. of the Nurnberg Centre of Gastroenterology in Germany, where he had undergone treatment on a number of occasions since 2004. The doctor who had attended to the applicant on those occasions stressed that he was in need of permanent medical supervision by qualified specialists.", "The lack of such assistance, in the doctor’s opinion, was life-threatening. He also noted that the conditions of a detention facility were not suitable for a person in the applicant’s state of health. 39. The applicant also provided the Court with an assessment report issued on 15 August 2013 by a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Dr K., in response to the medical opinion prepared on 7 August 2013 by the three doctors from hospital no. 20.", "Dr K. again criticised the opinion for the same defects as those identified in the previous report of 17 July 2013. 40. According to another report prepared on 2 August 2013 by Professor B., a surgeon from the Caspari Clinic in Munich, Germany, the applicant required complex daily medical examinations and procedures to control his diabetes, hepatitis C and urological problems. The doctor, who had treated the applicant in December 2012 and January 2013, insisted that the lack of such care would be critically dangerous for the applicant’s life. 41.", "Another medical expert from Germany, a urologist from a hospital in Dillenburg, in his opinion of 5 August 2013, described the complexity of the applicant’s health condition and listed the treatment which he should receive on a daily basis. He concluded that the applicant’s detention in the absence of such treatment posed a threat to his life. 42. Two more specialist reports were issued in November 2013: the first, by a professor of urology/andrology from Salzburg, Dr J.; and the second by a professor of surgery and intensive surgical medicine from the Paracelsus Private Medical University of Salzburg, Dr W. The reports were based on the applicant’s medical record and answers to their questions prepared by the applicant’s defence team. Having noted the poor sanitary conditions in which the applicant had to undergo necessary procedures and his “reduced immune system”, their prognosis for him was “very bad”, with the likelihood that “over time he would suffer from antibiotic-resistant urinary tract infection that [could] cause urosepsis with a very high risk of [death]”.", "Dr J. concluded that from the medical evidence before him, the applicant already had a permanent urinary tract infection which would probably soon develop into urosepsis. There was a 60% to 90% chance of developing septic shock and death in such a case, even in optimal clinical conditions. That chance became far more probable in a prison environment. The risk was even higher than for otherwise healthy paraplegic men given that the applicant was suffering from diabetes. Having listed various medical procedures and recommendations for treatment, Dr J. concluded that the applicant’s life “was in acute danger” and that “high-quality medical management of [the applicant’s] problems [was] mandatory”.", "Dr W. concluded his analysis of the applicant’s health and the treatment to which he was being subjected with the following assessment: “In my 40 years of professional experience as a surgeon, I have never encountered such inhuman, demoralizing and humiliating treatment of [a disabled person] bound to a wheelchair. A paraplegic patient has the same life expectancy as a [non-disabled] person, provided the measures described above are followed. Based on the documents presented to me, I have no reason to assume that this is the case. Given the circumstances described here, one may expect the patient to experience severe and agonizing pain. Due to the non-existent medical care, one may anticipate severe complications or his demise.” 43.", "On 17 December 2013 Dr W. amended his expert opinion. Having again listed all the illnesses with which the applicant had been diagnosed by the Russian prison authorities, Dr W. stated as follows: “From the medical view it is absolutely insignificant if one or more of those diseases are not in the list of serious diseases preventing the holding in custody of suspects or accused of the commission of crimes. On the other hand, it is proved in international medical literature that the combination of all these serious diseases causes an enormous life threatening situation for [the applicant]. The patient is really very critically ill.”. 44.", "In the meantime, relying on the Court’s letter of 16 August 2013, on 27 September 2013 the applicant’s lawyers asked the investigators in the case to provide the applicant with an opportunity to be examined in person by a number of medical experts from various civilian hospitals, including those who had prepared the reports assessing the doctors’ opinions of 17 July and 7 August 2013. The lawyers insisted that the named specialists had agreed to provide their expert opinion in response to the three questions put by the Court before the Russian Government under Rule 39 of the Rules of Court. 45. On 3 October 2013 the lawyers received a letter from the senior investigator “fully refusing” their request. Having pointed out that the applicant had already been examined twice by doctors from hospital no.", "20, a civilian hospital, and that the doctors had concluded that the applicant was not suffering from an illness included in the list of serious illnesses precluding detention pending trial, the senior investigator dismissed the request. 46. The lawyers sent a similar request to the director of the applicant’s detention facility. The director responded that he did not “in principle” object to such an examination by medical experts, but that the decision authorising the examination could only be taken by the investigator. 47.", "The applicant was again sent for an examination to hospital no. 20, where the three doctors confirmed their previous findings of 17 July and 7 August 2013. The new report issued on 5 November 2013 was very similar. 48. The lawyers also submitted to the Court a large number of certificates issued by the administration of the detention facility showing that the applicant’s daily needs in terms of medicines and medical materials, including catheters, were covered by his relatives.", "The director of the detention facility also confirmed that fact in his letter of 23 October 2013. 49. On 1 April 2014 the applicant was transferred to temporary detention facility no. 4 in Rostov-on-Don. A prison doctor attending on the applicant in that facility issued a record listing a number of visits to the applicant by various medical specialists and registering the applicant’s mounting complaints.", "In the same record she stated that while the applicant remained under permanent medical supervision and was subjected to regular clinical examinations, with his condition, due to those procedures, being satisfactory, any of his illnesses at any time could lead to a significant deterioration in his health and become acute or chronic, with an unpredictable prognosis for his life expectancy. II. RELEVANT DOMESTIC LAW A. Provisions governing the quality of medical care afforded to detainees 50. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals.", "These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice on the Organisation of Medical Assistance to Individuals Serving Sentences or Remanded in Custody (“the Regulation”), enacted on 17 October 2005, are applicable without exception to all detainees. In particular, section III of the Regulation sets out the initial steps to be taken by medical personnel of a detention facility on the admission of a detainee. On arrival at a temporary detention facility, all detainees should be subjected to a preliminary medical examination before they are placed in a cell shared by other inmates. The aim of the examination is to identify individuals suffering from contagious diseases and those in need of urgent medical assistance.", "Particular attention should be paid to individuals suffering from contagious conditions. No later than three days after the detainee’s arrival at the detention facility he or she should receive an in‑depth medical examination, including an X-ray. During the in-depth examination a prison doctor should register the detainee’s complaints, study his medical and personal history, record any injuries and recent tattoos, and schedule additional medical procedures, if necessary. A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 51.", "Subsequent medical examinations of detainees are performed at least twice a year or following a detainee’s complaints. If a detainee’s state of health has deteriorated, medical examinations and assistance should be provided by the detention facility medical staff. In such cases a medical examination should include a general check-up and additional tests, if necessary, with the participation of the relevant specialists. The results of the examinations should be recorded in the detainee’s medical file. The detainee should be comprehensively informed about the results of the medical examinations.", "52. Section III of the Regulation also sets out the procedure to follow in the event that the detainee refuses to undergo a medical examination or treatment. For each refusal, an entry should be made in the detainee’s medical record. A prison doctor should comprehensively explain to the detainee the consequences of his refusal to undergo the medical procedure. 53.", "Any medicines prescribed to the detainee must be taken in the presence of a doctor. In a limited number of circumstances, the head of the detention facility medical department may authorise his medical personnel to hand over a daily dose of medicines to the detainee to be taken unobserved. 54. The Internal Regulations of Correctional Institutions, in force since 3 November 2005, deal with every aspect of inmates’ lives in correctional institutions. In particular, paragraph 125 of the Regulations provides that inmates who are willing and able to pay for it may receive additional medical assistance.", "In such a situation, medical specialists from a State or municipal civilian hospital are to be called to the medical unit of the correctional institution where the inmate is being detained. 55. Governmental Decree no. 3 of 14 January 2011 concerning the medical examination of individuals suspected or accused of criminal offences regulates the procedure for authorising and performing a medical examination of a detainee to determine whether he or she is suffering from a serious illness preventing his or her detention. It also contains a list of such serious illnesses.", "A decision on the medical examination of a detainee is taken by the director of the detention facility following a written request from a detainee or his or her legal representative or a request by the head of the medical unit of that detention facility. The examination is performed by a medical commission of a facility appointed by the health service executive body of the respective region of the Russian Federation. The activities of the medical commission are determined by the Ministry of Health and Social Development of the Russian Federation. 56. The examination is performed within five days of the medical facility receiving the relevant order.", "Following the examination, the medical commission issues a report stating whether the detainee is suffering from a serious illness listed in the Decree. If a detainee who was previously examined by the medical commission experiences deterioration in his or her health, a new medical examination can be authorised. 57. The list of serious illnesses preventing the detention of suspected or accused persons comprises diseases affecting various systems of the human body. The sections devoted to illnesses affecting the endocrinal, nervous and urogenital systems read as follows: “Illnesses affecting the endocrinal system, eating disorders and metabolic disorders Serious forms of insular diabetes accompanied by complications or stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility.", "Serious disorders of the thyroid gland (if their surgical correction is impossible) and of other endocrine glands accompanied by complications or stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility. Diseases of the nervous system Inflammatory diseases of the central nervous system of a progressive nature accompanied by an apparent phenomenon of focal brain damage with stable impairment affecting motor, sensory and vegeto-trophic functions, leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility. Serious forms of atrophic and degenerative diseases of the nervous system of a progressive nature with stable impairment affecting motor, sensory and vegeto-trophic functions, leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility. Progressive neuromuscular synapsis and muscular diseases with stable impairment affecting motor functions, leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility. ... Urogenital system disorders Kidney and urinary tract disorders and complications following other illnesses requiring regular extracorporal detoxification.", "Kidney and urinary tract disorders accompanied by complications or stable health impairment leading to a significant reduction in vitality and requiring lengthy treatment in a specialised medical facility. Injuries, poisoning and other consequences of external factors Anatomic defects (amputations) arising after an illness, or injuries leading to a significant reduction in vitality [and] requiring permanent medical supervision.” B. Provisions governing detention 58. The relevant provisions governing detention are described in the judgment of Pyatkov v. Russia (no. 61767/08, §§ 48-66, 13 November 2012).", "III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS A. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”) 59. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows: “Health care 39.", "Prison authorities shall safeguard the health of all prisoners in their care. Organisation of prison health care 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. 40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy. 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.", "40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. Medical and health care personnel 41.1 Every prison shall have the services of at least one qualified general medical practitioner. 41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency. ... 41.4 Every prison shall have personnel suitably trained in health care. Duties of the medical practitioner 42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.", "... 42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to: ..; b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment; ... 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. ... Health care provision 46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison. 46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.” B. 3rd General Report of the European Committee for the Prevention of Torture (“the CPT Report”) 60. The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993).", "The following are extracts from the Report: “33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.", "It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene. 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ... 35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.", "As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification. Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ... 38.", "A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). ... 39.", "A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40.", "The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 61. The applicant complained that the Government’s failure to have his medical examination performed with a view to answering the three questions asked by the Court had been in breach of the interim measure indicated by the Court under Rule 39 and had thus violated his right to individual application. He relied on Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.", "The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3.", "The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.” A. Submissions by the parties 62. The Government opened their line of argument with the assertion that the legally binding force of the interim measure issued under Rule 39 of the Rules of Court may not be drawn from Article 34 of the Convention or “from any other source”. They further stressed that the Rules of Court and accordingly the interim measure applied did not have a binding force on the State Party and that, accordingly, their failure to submit answers to the questions raised by the Court in its letter of 16 August 2013 did not entail a violation of Article 34 or any other provision of the Convention. 63. The Government continued by arguing that the applicant’s right to communicate with the Court had in no way been interfered with.", "The applicant had retained counsel, who had submitted his application to the Court. The applicant and his counsel had continued to communicate freely with the Court and still did so. Lastly, the Government submitted that in response to the questions in the letter of 16 August 2013 they had provided the Court with medical reports prepared by specialists from two civilian hospitals merely days before receiving the Court’s letter indicating an interim measure. The Government considered that therefore there was no need to perform another medical examination of the applicant. They also stressed that in their response of 26 August 2013 they had already answered the three questions put forward.", "64. The applicant argued that the evidence submitted by him and by the Government on the state of his health drew two different pictures. While the reports prepared by the respected and highly-qualified medical specialists appointed by him consistently described his condition as life-threatening and unsuitable for detention in an ordinary detention facility, the medical reports commissioned by the investigating authorities and submitted to the Court by the Government refused time after time to admit that the applicant was unfit for continuous detention. In those circumstances, the Court had asked the Government to subject the applicant to an independent medical examination and raised three questions which medical experts had to answer. The Government, however, had refused to organise such an examination.", "Moreover, the applicant’s efforts to organise such an examination by independent specialists in the detention facility had also been unsuccessful. The applicant insisted that by failing to organise such an examination, the Government had stripped him of an opportunity to effectively argue his case before the Court, particularly so given the diverse nature of the evidence presented to the Court by the parties. B. The Court’s assessment 1. General principles 65.", "The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005‑I). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there are positive obligations inherent in Article 34 requiring the authorities to furnish all necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in situations where applicants are particularly vulnerable (see Naydyon v. Ukraine, no.", "16474/03, § 63, 14 October 2010; Savitskyy v. Ukraine, no. 38773/05, § 156, 26 July 2012; and Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013). 66. According to the Court’s established case-law, a respondent State’s failure to comply with an interim measure entails a violation of the right of individual application (see Mamatkulov and Askarov, cited above, § 125, and Abdulkhakov, cited above, § 222).", "The Court cannot emphasise enough the special importance attached to interim measures in the Convention system. Their purpose is not only to enable an effective examination of the application to be carried out but also to ensure that the protection afforded to the applicant by the Convention is effective; such measures subsequently allow the Committee of Ministers to supervise the execution of the final judgment. Interim measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 473, ECHR 2005‑III; Aoulmi v. France, no. 50278/99, § 108, ECHR 2006‑I; and Ben Khemais v. Italy, no.", "246/07, § 82, 24 February 2009). 67. The crucial significance of interim measures is further highlighted by the fact that the Court issues them, as a matter of principle, only in truly exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most of these cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard (see, inter alia, the firm position on that point expressed by the States Parties in the Izmir Declaration and by the Committee of Ministers in Interim Resolution CM/ResDH(2010)83 in the above-mentioned case of Ben Khemais).", "Any laxity on this question would unacceptably weaken the protection of the core rights in the Convention and would not be compatible with its values and spirit (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161); it would also be inconsistent with the fundamental importance of the right to individual petition and, more generally, undermine the authority and effectiveness of the Convention as a constitutional instrument of European public order (see Mamatkulov and Askarov, cited above, §§ 100 and 125, and, mutatis mutandis, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310). 68. Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably be taken in order to comply with the interim measure indicated by the Court (see Paladi v. Moldova [GC], no.", "39806/05, § 88, 10 March 2009). It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see Paladi, cited above, §§ 92-106; and Aleksanyan v Russia, no. 46468/06, §§ 228-232, 22 December 2008, in which the Court concluded that the Russian Government had failed to honour their commitments under Article 34 of the Convention as a result of their failure to promptly transfer a seriously ill applicant to a specialised hospital and to subject him to an examination by a mixed medical commission including doctors of his choice, in disregard of an interim measure imposed by the Court under Rule 39 of the Rules of Court). 2. Application to the present case 69.", "Turning to the circumstances of the present case, the Court notes that on 16 August 2013 it indicated to the Russian Government, under Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before the Court, that the applicant should be immediately examined by medical experts independent from the penal system with a view to determining three issues: (1) whether the treatment he was receiving in the temporary detention facility was adequate for his condition; (2) whether his state of health was compatible with the conditions of his detention; and (3) whether the applicant’s condition required his placement in a hospital. The Government responded by submitting the two medical reports of 17 July and 7 August 2013, each prepared by three doctors from Moscow hospital no. 20. The Government themselves also answered the three questions put forward by the Court (see paragraph 32-35 above). On 29 August 2013 the Court reminded the Government of the interim measure applied under Rule 39 of the Rules of Court, in accordance with which independent medical experts were to examine the applicant and to answer the three questions.", "70. Following the communication of the case, the Government insisted that they had entirely complied with the interim measure by submitting the two expert reports drawn up by civilian doctors and by providing detailed answers to the Court’s questions in their letter of 26 August 2013. The Court is not convinced by the Government’s argument. It reiterates that the aim of the interim measure in the present case, as formulated in the Court’s decision of 16 August 2013, was to obtain an independent medical expert assessment of the state of the applicant’s health, the quality of the treatment he was receiving and the adequacy of the conditions of his detention for his medical needs. That expert evidence was necessary to decide whether, as the applicant argued, his life and limb were at real risk as a result of the conditions of his detention, including the alleged lack of requisite medical care.", "In addition, the Court was concerned with the contradictory nature of the medical reports prepared by the applicant’s experts and those commissioned by the investigators, which the applicant submitted with his application and his request for an interim measure. The interim measure in the present case was therefore also meant to ensure that the applicant could effectively pursue his case before the Court (see, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 141, ECHR 2008). 71. Whilst the formulation of an interim measure is one of the elements to be taken into account in the Court’s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, cited above, § 91) and, indeed, to its very purpose.", "The main purpose of the interim measure, as indicated by the Court in the present case – and the Government did not pretend to be unaware of it – was to prevent the applicant’s exposure to inhuman and degrading suffering in view of his poor health and his remaining in the conditions of an ordinary detention facility that was unable to ensure that he received, as he argued, adequate medical assistance. There could have remained no doubt about either the purpose or the rationale of that interim measure after the Court, having received the Government’s response to its decision of 16 August 2013, reminded them of the interim measure. 72. While not doubting the professional expertise and qualifications of the doctors who prepared the medical reports of 17 July and 7 August 2013, as well as their independence from the penal system, their opinion reflected in the two reports did not provide any answers to the three questions put forward by the Court. Although the Court is mindful of the particularly harsh criticism to which the two reports were subjected by the experts appointed by the applicant, to the point of being described as incomplete, subjective and failing to reflect the “true picture of [the applicant’s] pathology” (see paragraphs 26 and 39 above), it finds it more important that the aim of the two medical examinations, the results of which were set out in the reports submitted by the Government, was to compare the applicant’s medical condition with the exhaustive list of illnesses provided for by the Governmental Decree, which could have warranted his release (see paragraphs 23 and 28 above).", "At no point during the examinations did the doctors from hospital no. 20 assess the applicant’s state of health independently from that list or evaluate whether his illnesses, separately or in combination, given their current manifestation, nature and duration, required his transfer to a hospital. Nor did they pay any attention to the quality of the medical care he had been receiving while in detention, or the conditions in which he was being detained. The reports therefore have little relevance to the implementation of the interim measure indicated by the Court to the Russian Government in the present case. 73.", "The Government further argued that they themselves had responded to the three questions put forward by the Court in its decision of 16 August 2013. The Court notes in this respect that in view of the vital role played by interim measures in the Convention system, they must be strictly complied with by the State concerned. The Court cannot conceive, therefore, of allowing the authorities to circumvent an interim measure such as the one indicated in the present case by replacing the medical expert opinion with their own assessment of the applicant’s situation. Yet, that is exactly what the Government have done in the present case (see paragraphs 32-35 above). In so doing, the State has frustrated the purpose of the interim measure, which sought to enable the Court, on the basis of a relevant independent medical opinion, to effectively respond to and, if need be, prevent the possible continuous exposure of the applicant to physical and mental suffering in violation of the guarantees of Article 3 of the Convention (see Salakhov and Islyamova v. Ukraine, no.", "28005/08, § 222, 14 March 2013. 74. The Government did not demonstrate any objective impediment preventing compliance with the interim measure (see Paladi, cited above, § 92). Nor did they explain the authorities’ refusal to allow a medical expert examination of the applicant organised by his defence team with a view to providing answers to the Court’s three questions (see paragraphs 44-47. above). The Court finds the authorities’ denial of access to the applicant by those experts striking, particularly given that the issue at hand – the health of an inmate – was of such urgency and importance.", "75. Consequently, the Court concludes that the State has failed to comply with the interim measure indicated by it in the present case under Rule 39 of the Rules of Court, in breach of its obligation under Article 34 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 76. The applicant complained that he was unable to obtain effective medical care while in detention, which had led to a serious deterioration in his condition, put him in a life-threatening situation and subjected him to severe physical and mental suffering, in violation of the guarantees of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Submissions by the parties 77.", "Having referred to the general principles laid down by the Court in a number of judgments concerning the standards of medical care of detainees (Aleksanyan v. Russia, no. 46468/06, 22 December 2008; Mirilashvili v. Russia, no. 6293/04, 11 December 2008; Gelfmann v. France, no. 25875/03, 14 December 2004; Kalashnikov v. Russia, no. 47095/99, ECHR 2002‑VI, and Mouisel v. France, no.", "67263/01, ECHR 2002‑IX), the Government stressed that the applicant had received and was continuing to receive comprehensive medical care in detention. They relied on evidence enclosed with their reply of 26 August 2013. The Government further challenged the reliability of the medical reports commissioned by the applicant from Russian and foreign doctors. In particular, they argued that the biggest flaw of those examinations, in comparison with those provided to the Court by the Government, was that neither of the applicant’s experts had examined him in person. They also stressed that although the applicant had provided the experts with various medical documents describing his health, those documents were not “official” records “reflecting the essence of the medical treatment provided to [him]”.", "The Government therefore proposed that the Court dismiss the expert reports as inadmissible and declare the applicant’s complaint as manifestly ill-founded. 78. The applicant argued that following his arrest the medical care he had received in detention had been extremely scarce and ineffective and had led to a steady deterioration in his health. The applicant stressed that he was seriously ill and unable to care for himself. He required permanent assistance even with his most basic needs.", "The medical specialists who had treated him prior to his arrest had always acknowledged the necessity of various medical procedures, including simple ones such as physiotherapy, as he was unable to move on his own. The administration of the detention facility was unable to provide that level of care. They merely continued to register the increasing number of the applicant’s complaints, including those of serious pain in the back, atrophy of the limbs, headaches, pain in the legs, dizziness, insomnia, spasms, and so on. He was unable to urinate and defecate and had to undergo medical procedures to relieve himself, which he had to do in extremely degrading and unsanitary conditions that posed a constant risk to his life. While the authorities, in their replies to the applicant’s complaints, had acknowledged that the conditions in the detention facility did not satisfy the simple requirements of hygiene and sterility, they had taken no steps to change that situation.", "The medical recommendations issued by specialists prior to his arrest were costly and complex, as could be seen from various medical reports submitted by him to the Court, and could not be complied with by the untrained and poorly qualified medical personnel of the detention facility. The applicant insisted that the Russian authorities had violated his rights guaranteed by Article 3 of the Convention as they were unable to provide him with the requisite level of medical services and were subjecting him to severe suffering and a significant risk of a fatal outcome. B. The Court’s assessment 1. Admissibility 79.", "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. 2. Merits (a) General principles (i) As to the Court’s evaluation of the facts and burden of proof 80.", "In cases in which there are conflicting accounts of events, the Court is inevitably confronted, when establishing the facts, with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is to rule not on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention ‑ conditions its approach to the issues of evidence and proof.", "In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no.", "29226/03, § 88, 23 February 2012, and the cases cited therein). 81. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no.", "23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008). In the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no.", "27026/10, § 161, 5 June 2012). (ii) As to the application of Article 3 and standards of medical care for detainees 82. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "Ill‑treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Verbinţ v. Romania, no. 7842/04, § 63, 3 April 2012, with further references). 83. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering.", "However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references). 84. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no.", "26853/04, § 208, 13 July 2006). In most cases concerning the detention of persons who were ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this regard that even though Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94; Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; and Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts)).", "85. The “adequacy” of medical assistance remains the most difficult element to determine. The Court insists that, in particular, authorities must ensure that diagnosis and care are prompt and accurate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 115, 29 November 2007; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011; Gladkiy v. Russia, no.", "3242/03, § 84, 21 December 2010; Khatayev v. Russia, no. 56994/09, § 85, 11 October 2011; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation (see Hummatov, cited above, §§ 109 and 114; Sarban v. Moldova, no. 3456/05, § 79, 4 October 2005; and Popov, cited above, § 211). 86.", "On the whole, the Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). (b) Application of the above principles to the present case 87. Turning to the circumstances of the present case, the Court observes that the applicant is a paraplegic wheelchair-bound inmate suffering from a long list of illnesses, affecting his nervous, urinary, muscular and endocrine systems (see paragraph 21 above).", "Relying on a large number of expert opinions issued by Russian and foreign medical specialists, the applicant argued that his condition was extremely serious, or even life-threatening, particularly given that he had not received adequate medical care in detention (see paragraphs 22, 26, 38-43 above). He submitted that neither the quality nor the quantity of the medical services he was being provided with corresponded to his needs. In addition, he was being left in unsanitary conditions in which any medical procedure administered to him on a daily basis could be fatal. 88. The Government disagreed.", "They drew the Court’s attention to the reports prepared by doctors from hospital no. 20, as well as the medical certificates issued by the Russian prison authorities. They insisted that the applicant was not suffering from a serious illness listed in the Governmental decree, that his condition did not therefore call for his release and that the quality of the medical services afforded to him was beyond reproach (see paragraphs 23, 28, and 32-35 above). 89. The Court has already stressed its difficult task of evaluating the contradictory and even mutually exclusive evidence submitted by the parties in the present case (see paragraph 70 above).", "Its task has been further complicated by the need to assess evidence calling for expert knowledge in various medical fields. In this connection it emphasises that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny” (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Georgiy Bykov v. Russia, no.", "24271/03, § 51, 14 October 2010). 90. The Court has examined a large number of cases against Russia raising complaints of inadequate medical services afforded to inmates (see, among the most recent ones, Koryak v. Russia, no. 24677/10, 13 November 2012; Dirdizov v. Russia, no. 41461/10, 27 November 2012; Reshetnyak v. Russia, no.", "56027/10, 8 January 2013; Mkhitaryan v. Russia, no. 46108/11, 5 February 2013; Gurenko v. Russia, no. 41828/10, 5 February 2013; Bubnov v. Russia, no. 76317/11, 5 February 2013; Budanov v. Russia, no. 66583/11, 9 January 2014, and Gorelov v. Russia, no.", "49072/11, 9 January 2014). In the absence of an effective remedy in Russia to air those complaints, the Court has been obliged to perform the first-hand evaluation of evidence before it to determine whether the guarantees of Articles 2 or 3 of the Convention had been respected. In that role, paying particular attention to the vulnerability of applicants in view of their detention, the Court has called on the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention. 91. Coming back to the medical reports and opinions submitted by the applicant in the present case, the Court is satisfied that there is prima facie evidence in favour of his submissions and that the burden of proof should shift to the respondent Government.", "The Court finds some merit in the Government’s argument that the expert evidence produced by the applicant has the major defect of having been drawn up without the experts having examined the applicant in person. However, in the particular circumstances of the present case, it does not consider that argument valid given that the Government failed to organise a medical expert examination of the applicant in disregard of the interim measure indicated by the Court (see paragraph 75 above) and given that the Russian authorities denied the applicant access to medical experts of his choice (see paragraph 74 above). 92. Having regard to its findings under Article 34 of the Convention, the Court considers that it can draw inferences from the Government’s conduct and is ready to apply a particularly thorough scrutiny to the evidence submitted by them in support of their position. It therefore finds that the Government have failed to demonstrate conclusively that the applicant was receiving effective medical treatment for his illnesses while in detention.", "The evidence submitted by the Government is unconvincing and insufficient to rebut the applicant’s account of the treatment to which he was being subjected in detention. 93. The Court thus finds that the applicant was being left without the medical assistance vital for his illnesses. The treatment he was receiving was incomplete and the medical supervision afforded to him was insufficient to maintain his health. There had been no thorough evaluation of his condition or adequate diagnosis in response to the increasing number of his health-related complaints.", "The medical personnel of the detention facilities were taking no steps to address his concerns or to apply the recommendation of the experts commissioned by the applicant. The poor quality of the medical services was accentuated by the fact that the applicant was being kept in unsterile and unsanitary detention conditions posing a serious danger to him, given that his immune system was already compromised. The Court is also concerned that the information provided by the prison doctor from the detention facility in Rostov-on-Don in respect of the quality of the medical care currently afforded to the applicant does not lead it to conclude that the medical care he is continuing to receive in detention is such as to be capable of securing his health and well-being and preventing further aggravation of his condition (see paragraph 49 above). The Court believes that, as a result of the lack of comprehensive and adequate medical treatment, the applicant is being exposed to prolonged mental and physical suffering that is diminishing his human dignity. The authorities’ failure to provide the applicant with the medical care he needs amounts to inhuman and degrading treatment within the meaning of Article 3 of the Convention.", "94. Accordingly, there has been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 95. The applicant complained of a violation of his right to trial within a reasonable time and alleged that the orders for his detention had not been based on sufficient reasons.", "He relied on Article 5 § 3 of the Convention, which provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Submissions by the parties 96. The Government argued that the Russian courts had authorised the applicant’s arrest because they had sufficient reasons to believe that he had organised a number of very serious criminal offences. When authorising or extending the applicant’s detention, the Russian courts had taken into account the gravity of the charges, the nature of the criminal offences in question, and the applicant’s social and political standing, which provided him with significant possibilities to influence witnesses, threaten victims, obstruct the investigation by other means, as well as abscond or reoffend. The courts had examined the possibility of applying other, less strict measures of restraint, such as bail or house arrest, but had found them insufficient to counter-balance the above-mentioned risks.", "Similarly, the courts had paid attention to the defence’s arguments concerning the state of the applicant’s health, but given the medical evidence before them, had considered that his condition did not preclude his detention pending trial. 97. The applicant argued that the authorities had known of his serious illness, and that his state of health had warranted his release. His diagnosis had diminished the risk of his absconding or reoffending. However, the courts had continued to extend his detention on obviously far-fetched grounds.", "The investigator’s assumptions that he was liable to abscond or obstruct the course of justice had not been supported by any evidence. The detention orders had been issued as a mere formality. B. The Court’s assessment 1. Admissibility 98.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. The complaint must therefore be declared admissible. 2. Merits (a) General principles 99. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a sine qua non for the lawfulness of his or her continued detention.", "However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are found to have been “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV and Suslov v. Russia, no. 2366/07, §§ 93-97, 29 May 2012).", "100. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons justifying his or her continued detention (see, among other authorities, Castravet v. Moldova, no.", "23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-...; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period.", "Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). 101. It is incumbent on the domestic authorities to establish the existence of specific facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no.", "54071/00, § 67, 7 April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities must examine all the facts arguing for or against the existence of a genuine public interest requirement justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities which ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ decisions and of the established facts mentioned by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no.", "75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152). (b) Application to the present case 102. The applicant was arrested on 1 June 2013 and was convicted on 9 July 2014 of conspiring to organise a terrorist attack. The period to be taken into consideration has therefore lasted for slightly more than a year. The fact that criminal proceedings against the applicant on other charges are currently pending does not alter this conclusion.", "103. Turning to the circumstances of the present case and assessing the grounds for the applicant’s detention, the Court notes that the competent judicial authorities advanced three principal reasons for not granting the applicant’s release, namely that there remained a strong suspicion that he had committed the crimes of which he was accused; the serious nature of the offences in question; and the fact that if released, he was likely to abscond and pervert the course of justice, given the sentence he faced if found guilty as charged, his personality, his connections and powers stemming from his position as mayor of Makhachkala and his political and social stance, and the likelihood that he would influence witnesses. 104. The Court accepts the existence of the reasonable suspicion, based on cogent evidence, that the applicant committed the offences with which he was charged. It also acknowledges the particularly serious nature of the alleged offences.", "105. As regards the danger of the applicant’s absconding, the Court notes that the judicial authorities relied on the likelihood that a severe sentence would be imposed on the applicant, given the serious nature of the offences at issue. In this connection, the Court reiterates that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending. It acknowledges that in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001).", "However, the Court reiterates that the possibility of a severe sentence alone is not sufficient, after a certain lapse of time, to justify continued detention based on the danger of flight (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7, and B. v. Austria, 28 March 1990, § 44, Series A no. 175). 106. In this context the Court observes that the danger of absconding must be assessed with reference to a number of other relevant factors.", "In particular, regard must be had to the character of the person involved, his morals and his assets (see W. v. Switzerland, 26 January 1993, § 33, Series A no. 254 A). Having said that, the Court would emphasise that there is a general rule that the domestic courts, in particular the trial court, are better placed to examine all the circumstances of the case and take all the necessary decisions, including those in respect of pre-trial detention. The Court may intervene only in situations where the rights and liberties guaranteed under the Convention have been infringed (see Bąk v. Poland, no. 7870/04, § 59, ECHR 2007 II (extracts)).", "The applicant in the present case is undoubtedly a person with significant financial resources and powerful connections, including in political and law-enforcement circles. The medical evidence that he presented to the national courts showed that he had frequently travelled abroad to consult foreign medical specialists and to undergo treatment. There was no evidence in the file that he had surrendered his passport. While the Court doubts whether those circumstances, taken on their own, could have justified the domestic courts’ finding that it was necessary to continue the applicant’s detention, it is satisfied that the totality of those factors combined with other relevant grounds could have provided the domestic courts with an understanding of the pattern of the applicant’s behaviour and the persistence of a risk of his absconding (see, for similar reasoning, Sopin v. Russia, no. 57319/10, § 42, 18 December 2012, and Mkhitaryan v. Russia, no.", "46108/11, § 93, 5 February 2013). 107. The Court further observes that one of the main grounds relied on by the domestic courts in their justification for the applicant’s detention was the likelihood of his tampering with evidence and influencing witnesses. The Court reiterates that, as regards the risk of pressure being brought to bear on witnesses, the judicial authorities considered that the applicant’s substantial influence, including through his holding office in Makhachkala and his links with the law-enforcement bodies, as well as with the criminal underworld, could give him an opportunity to influence witnesses and to destroy evidence if released. In these circumstances the Court is prepared to accept that the courts could have validly presumed that a risk existed that, if released, the applicant might abscond, reoffend or interfere with the proceedings, given the nature of his alleged criminal activities (see, for similar reasoning, Bąk v. Poland, cited above, § 62).", "108. It remains to be ascertained whether the risks of the applicant absconding or perverting the course of justice persisted throughout the entire period of his detention. The Court reiterates the applicant’s arguments that the fact that he is seriously ill and confined to a wheelchair, with his state of health continuously deteriorating and the need to remain under constant medical supervision, considerably reduces the risk of his absconding. While not being convinced that the applicant’s medical condition entirely mitigated the risk of his absconding so that it was no longer sufficient to outweigh his right to a trial within a reasonable time or release pending trial, the Court is of the opinion that the risk of collusion is such that it cannot be negated by the changes in the applicant’s state of health to the extent that his detention is no longer warranted. 109.", "In the decisions extending the detention it was emphasised that the fears of collusion were founded on the specific, fear-spreading and order-challenging nature of the crimes and the circumstances surrounding the criminal offences with which the applicant was charged. Those included the organisation of a terrorist attack on a civilian aircraft and the commissioning of murders of various public officials, including representatives of the law-enforcement bodies who had investigated criminal activities in Makhachkala. The national courts stressed the organised nature of the crimes, involving eleven apprehended defendants and a number of suspects still on the run. Moreover, they could not disregard the fact that the criminal group itself was comprised of public officials and law-enforcement officers. The authorities considered the risk of pressure being brought to bear on the parties to the proceedings to be real, and in such circumstances insisted on the necessity to keep the applicant detained in order to prevent him from disrupting the criminal proceedings.", "The Court reiterates that the fear of reprisal, justifiable in the present case, can often be enough for intimidated witnesses to withdraw from the criminal justice process altogether. The Court observes that the domestic courts carefully balanced the safety of the witnesses and victims who had already given statements against the applicant, together with the prospect of other witnesses’ willingness to testify, against the applicant’s right to liberty (see Sopin, cited above, § 44). 110. Having regard to the above, the Court considers that the present case is different from many previous Russian cases where a violation of Article 5 § 3 was found because the domestic courts in those cases had extended the applicant’s detention by relying essentially on the gravity of the charges, without addressing specific facts or considering alternative preventive measures (see, among many others, Belevitskiy v. Russia, no. 72967/01, §§ 99 et seq., 1 March 2007; Khudobin v. Russia, no.", "59696/00, §§ 103 et seq., ECHR 2006-... (extracts); and Mamedova v. Russia, no. 7064/05, §§ 72 et seq., 1 June 2006). In the present case, the domestic courts cited specific facts in support of their conclusion that the applicant might interfere with the proceedings, having assessed the evolving circumstances and the changes that affected the applicant’s situation in the course of his detention. They also considered the possibility of applying alternative measures, but found them to be inadequate (see, for similar reasoning, Buldashev v. Russia, no. 46793/06, § 99, 18 October 2011 and Bordikov v. Russia, no.", "921/03, § 92, 8 October 2009. 111. The Court believes that the authorities were faced with the difficult task of determining the facts and the degree of responsibility of each of the defendants who had been charged with taking part in the organised criminal acts. In these circumstances, the Court also accepts that the need to obtain voluminous evidence from many sources, coupled with the existence of a general risk flowing from the organised nature of the applicant’s alleged criminal activities, constituted relevant and sufficient grounds for extending the applicant’s detention for the time necessary to complete the investigation, draw up a bill of indictment and hear evidence from the accused and witnesses in court. The Court does not underestimate the need for the domestic authorities to take statements from witnesses in a manner that excludes any doubt as to their veracity.", "The Court thus concludes that, in the circumstances of this case, the risk of the applicant interfering with the course of justice actually did exist, and it justified holding him in custody (see, for similar reasoning, Celejewski v. Poland, no. 17584/04, 4 May 2006, and Łaszkiewicz v. Poland, no. 28481/03, §§ 59-60, 15 January 2008). The Court concludes that the circumstances of the case as described in the decisions of the domestic courts, including the applicant’s personality and the nature of the crimes with which he was charged, reveal that his detention was based on “relevant” and “sufficient” grounds. 112.", "The Court lastly observes that the proceedings were of considerable complexity, given the extensive evidentiary proceedings and the implementation of the special measures required in cases concerning organised crime. The time that elapsed between the commission of the crimes and the institution of the criminal proceedings was another factor that complicated the investigators’ task. The Court is mindful of the fact that the authorities needed to balance the necessity to proceed with the investigation against an obligation to ensure that the applicant was fully fit to take part in it. The national authorities displayed diligence in the conduct of the proceedings. They completed the investigation, held the trial hearings and issued the judgment against the applicant within thirteen months.", "The applicant did not argue that the authorities had, in any way, delayed that procedural action. In these circumstances, the Court reiterates that while an accused person in detention is entitled to have his case given priority and conducted with particular expedition, this must not stand in the way of the authorities’ efforts to clarify fully the facts at issue, to provide the defence with all the necessary facilities for putting forward their evidence and stating their case, and to give judgment only after careful reflection on whether the offences were in fact committed and on the sentence to be imposed (see, for similar reasoning, Bąk, cited above, § 64). 113. To sum up, having established that the authorities put forward relevant and sufficient reasons to justify the applicant’s detention and that they did not display a lack of special diligence in handling the applicant’s case, the Court considers that there has been no violation of Article 5 § 3 of the Convention. IV.", "APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 114. 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.” 115. 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).", "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). 116. 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). 117. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 3 of the Convention, to indicate individual measures for the execution of this judgment.", "It has found a violation of that Article on account of the failure of the Russian authorities to provide the applicant, a seriously ill-person whose life is at risk, with the requisite level of medical care. 118. The Court considers that in order to redress the effects of the breach of the applicant’s rights, the authorities should admit him to a specialised medical facility where he would remain under constant medical supervision and would be provided with adequate medical services corresponding to his needs. Nothing in this judgment should be seen as an obstacle to his placement in a specialised prison medical facility if it is established that the facility can guarantee the requisite level of medical supervision and care. The authorities should regularly re-examine the applicant’s situation, including with the involvement of independent medical experts.", "B. Article 41 of the Convention 119. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 120. The applicant claimed 300,000 euros (EUR) in respect of non‑pecuniary damage.", "121. The Government submitted that the sum claimed was excessive. 122. The Court observes that it has found violations of Articles 3 and 34 of the Convention in the present case. It considers that the applicant must have endured suffering as a result of his inability to receive comprehensive medical services in detention.", "His suffering cannot be compensated for by a mere finding of a violation. Having regard to all the above factors, and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 2. Costs and expenses 123. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court.", "He asked that the sum be paid into his lawyer’s bank account. 124. The Government stressed that the applicant had not provided the Court with a contract or any documents supporting his claim for the reimbursement of costs and expenses, or, in fact, showing that those expenses had been incurred at all. 125. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "The Court observes that the applicant did not submit any documents to confirm the legal fees paid to his representative in the proceedings before the Court. However, it cannot overlook the number of submissions made by the applicant’s lawyer to the Court. In the absence of any documents showing the actual sums incurred by the applicant for his representation before the Court, it therefore considers it reasonable to award under this head the usual amount of legal aid granted to applicants in the proceedings, that is, the sum of EUR 850, plus any tax that may be chargeable to the applicant. The sum is to be paid into the bank account of the applicant’s representative. 3.", "Default interest 126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that the respondent State has failed to comply with the interim measure indicated by the Court under Rule 39 of the Rules of Court, in violation of its obligation under Article 34 of the Convention; 3.", "Holds that there has been a violation of Article 3 of the Convention; 4. Holds that there has been no violation of Article 5 § 3 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 15,000 (fifteen thousand euros), in respect of non‑pecuniary damage, plus any tax that may be chargeable; (ii) EUR 850 (eight hundred and fifty euros), in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable to the applicant, to be paid to the bank account of the applicant’s representative; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenIsabelle Berro-LefèvreRegistrarPresident" ]

[ "FIRST SECTION CASE OF NAMAT ALIYEV v. AZERBAIJAN (Application no. 18705/06) JUDGMENT STRASBOURG 8 April 2010 FINAL 08/07/2010 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Namat Aliyev v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 18 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "18705/06) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Namat Faiz oglu Aliyev (Namət Faiz oğlu Əliyev – “the applicant”), on 20 April 2006. 2. The applicant was represented by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.", "The applicant alleged, in particular, that the election in his electoral constituency had not been free and fair and that his right to stand for election, as guaranteed by Article 3 of Protocol No. 1 to the Convention, had been infringed due to the relevant authorities' failure to effectively address his complaints concerning election irregularities. 4. On 7 November 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1966 and lives in Baku. 6. The applicant stood for the elections to the Milli Majlis (Parliament) of 6 November 2005 as a candidate of the opposition bloc Azadliq, a coalition formed for electoral purposes by the Popular Front Party of Azerbaijan, with which the applicant was affiliated, together with a number of other opposition parties.", "He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Barda City Electoral Constituency no. 93. 7. The constituency was divided into forty-two electoral precincts, with one polling station in each precinct. There were a total of eighteen candidates running for election in this constituency.", "The applicant was the only candidate nominated by Azadliq in that constituency. 8. According to the ConEC protocol drawn up after election day, one of the applicant's opponents, Z.O., a member of the Motherland Party, obtained the highest number of votes cast in the constituency. Specifically, according to the ConEC protocol, Z.O. received 5,816 votes (41.25%), the applicant received 2,001 votes (14.19%), and a third candidate received 1,821 votes (12.92%).", "The total number of votes cast for each of the remaining candidates was substantially lower. A. The applicant's claims concerning alleged irregularities on election day 9. On 7 and 8 November 2005 the applicant submitted identical complaints to the ConEC and the Central Electoral Commission (“the CEC”), in which he claimed, inter alia, that: (i) the local executive and municipal authorities, as well as heads of state‑funded institutions and organisations, interfered in the election process in favour of Z.O. prior to and during election day (in the form of openly campaigning in his favour and coercing voters to vote for him); (ii) Z.O.", "'s supporters (mostly State officials of various sorts) intimidated voters and otherwise attempted to influence voter choice in polling stations; (iii) in several polling stations, observers were harassed or excluded from the voting area by the police; (iv) some citizens residing in relevant election precincts were unable to exercise their right to vote due to the authorities' failure to include them in relevant voters lists; and (v) there were instances of multiple voting and ballot-box stuffing in different polling stations. 10. In support of his claims, the applicant submitted to the CEC originals of more than 30 affidavits (akt) of election observers, audio tapes and other evidence documenting specific instances of irregularities complained of. Some examples of the evidence presented are summarised below. 11.", "The ten-minute audio recording contained interviews with a number of unidentified voters, who stated, inter alia, that prior to election day directors of governmental institutions and public organisations (such as public schools and libraries) located on the territory of the constituency had held staff meetings with the specific purpose of instructing their staff to vote for Z.O., threatening them with salary cuts if Z.O. did not win the election. 12. In an affidavit signed by them, seven observers in Polling Station no. 1 stated, inter alia, that twenty-five voters had voted twice, however the chairman of the Precinct Electoral Commission (“the PEC”) for this polling station had taken no action when this matter was brought to his attention.", "13. Seven observers in Polling Station no. 11 noted, inter alia, that the director of a public school where the polling station was located had openly intervened in the election process and interfered with the functions of the PEC without any objection by PEC members. Also, the same school director instructed a police officer to forcibly exclude one of the observers from the polling station. 14.", "Three observers in Polling Station no. 14 noted, inter alia, that a certain named State official had actively interfered in the election process by openly campaigning in favour of Z.O. on the premises of the polling station, asked voters to vote for him and brought groups of unregistered voters to the polling station to vote for Z.O. 15. Eight observers in Polling Station no.", "16 witnessed one incident of ballot-box stuffing by a PEC member. 16. An affidavit signed by six observers and candidates' representatives in Polling Station no. 31 stated that, at 7 p.m., when the vote-counting began, all of the observers had been forced out of the polling station premises by the police on the instruction of the PEC chairman. In the absence of the observers, a few hundred false ballots were illegally added into Z.O.", "'s total vote count in the polling station. According to a separate affidavit signed by observers from the same polling station, the PEC chairman and representatives of the executive and municipal authorities interfered in the election process and instructed voters to vote for Z.O. According to another affidavit, there were also several irregularities in the voter lists in this polling station. 17. Three observers in Polling Station no.", "41 noted, inter alia, that commission members had illegally added several additional ballots during the vote-counting. 18. In their affidavits, observers from Polling Stations nos. 7, 12, 13, 15, 29, 30 and 37 documented similar incidents of alleged illegal campaigning in favour of Z.O., ballot-box stuffing and other forms of tampering with ballots, and irregularities with voter lists. A number of observers also noted that voting booths in some polling stations were of inadequate standard.", "B. Reaction of the electoral commissions 19. According to the applicant, neither the ConEC nor the CEC replied to his complaints. 20. According to the Government, the applicant's complaint was examined by the ConEC.", "As it appears from the documents submitted by the Government, following receipt of the applicant's complaint, the ConEC demanded explanations from the chairmen and members of the relevant PECs in connection with the applicant's allegations. In reply, about twenty PEC chairmen and members submitted brief handwritten statements (some of them as short as one or two sentences), or “explanatory notes” (“izahat”), all signed on 21 November 2005. All these notes stated in general terms that the election process in their respective polling stations had gone smoothly and without any irregularities, undue pressure on voters or any other breaches of the electoral law, and that any allegations by the applicant to the contrary were false. 21. On 23 November 2005 the ConEC rejected the applicant's complaint.", "Without any elaboration on details of the applicant's specific allegations, it decided that they were unsubstantiated. At the same time, however, the ConEC confirmed that the condition of the voting booths in Polling Station no. 37 and “some other” (unidentified) polling stations had been poor. This finding did not entail any consequences for the official election results in those polling stations or in the constituency as a whole. 22.", "On the same day, 23 November 2005, the CEC issued its final protocol approving the overall election results in the country (with the exception of a few electoral constituencies) and submitted it, together with relevant documents, to the Constitutional Court for review and approval of the election results. The election results for Barda City Electoral Constituency no. 93 were among those approved by the CEC, confirming Z.O. as the winner in this constituency. 23.", "According to the country-wide results, the ruling Yeni Azerbaijan Party again won the majority of seats in the Milli Majlis. C. Court proceedings 24. On 25 November 2005 the applicant lodged an action with the Court of Appeal, asking the court to invalidate the CEC's final protocol in the part relating to the election results in Barda City Electoral Constituency no. 93. In addition to restating all of his complaints made previously to the electoral commissions, he also complained of specific instances of discrepancies and inconsistencies in the PEC protocols which served as a basis for compiling the election results in the constituency as a whole.", "In particular, he noted a significant discrepancy in the PEC protocol for Polling Station no. 11, in which certain numbers did not add up correctly. As a result, more than 700 blank ballots out of more than 1,000 blank ballots originally issued to the PEC appeared to be “missing” (the protocol indicated that 313 persons had voted in that polling station, but only eleven of the remaining blank ballots were indicated as “unused” and formally “cancelled”, with no explanation as to what happened to the remaining more than 700 blank ballots). The same was the case with the PEC protocol for Polling Station no. 13, where more than 600 blank ballots were unaccounted for.", "Similar discrepancies were also allegedly found in PEC protocols for five other polling stations. The applicant claimed that these “missing” blank ballots had been sneaked out and illegally used for ballot-box stuffing in favour of Z.O. in various other polling stations. 25. The applicant argued that, due to all these irregularities, it was not possible to determine the true opinion of the voters in his constituency.", "He also complained that the CEC had failed to examine his complaint of 7 November 2005. In support of his claims, the applicant submitted copies of the same evidence previously submitted to the CEC, including photocopies of the observers' affidavits and copies of audio material. 26. On 28 November 2005 the Court of Appeal dismissed the applicant's claims as unsubstantiated. The court did not consider the photocopies of the affidavits as admissible evidence, noting that in accordance with the Code of Civil Procedure (“the CCP”) either the originals or notarised copies of those affidavits should have been submitted.", "Specifically, most of the reasoning contained in the Court of Appeal's judgment was limited to the following: “According to Article 14.2 of the CCP ..., the court shall examine and rely on only the evidence submitted by the parties. According to Article 77.1 of the same Code, each party must prove any allegations which it makes in support of its claims and objections. Based on the material in the case file and the parties' submissions, [the applicant's] claim against [the CEC] ... cannot be upheld. The alleged incidents concerning Barda City Electoral Constituency no. 93, as described in the claim, did not take place.", "Documents attached to the claim are photocopies and no originals or notarised copies of documents have been submitted. [As such,] affidavits attached to the claim cannot be admitted as evidence. On the other hand, the alleged omission of a significant number of voters from voting lists has not been proved by the material in the case file. In such circumstances, the court considers that [the applicant's] claim against [the CEC] ... must be dismissed.” 27. On 30 November 2005 the applicant lodged a further appeal with the Supreme Court, reiterating his claims.", "He also noted that he had submitted the originals of the documentary evidence to the CEC on 7 November 2005 and argued that the Court of Appeal had failed to take this fact into account. 28. On 1 December 2005 the Supreme Court dismissed the applicant's appeal on the same grounds as the Court of Appeal's judgment of 28 November 2005. As to the originals of the documentary evidence allegedly submitted to the CEC, the Supreme Court noted that the applicant had failed to submit any evidence proving that he had ever applied to the CEC with a complaint. The reasoning in the Supreme Court's decision was as follows: “According to Article 77.1 of the CCP ..., each party must prove any allegations which it makes in support of its claims and objections.", "[The applicant] has not presented any convincing evidence capable of proving the allegations forming the basis of his claim. The photocopies of affidavits attached to his claim were not admitted as convincing evidence by the Court of Appeal in a lawful and justified manner, as they had not been notarised. Moreover, the case materials contain no documents confirming that the applicant had applied to the electoral commissions under the procedure specified in Article 112 of the Electoral Code. Although at the oral hearing the applicant claimed that he had submitted the originals of the affidavits to the CEC, he has not submitted to the court any evidence showing that he had [actually] applied to the CEC. However, according to Articles 89 and 90 of the CCP ..., originals or duly certified copies of evidence should be submitted to courts.", "The applicant has not complied with this rule. According to Article 416 of the CCP ..., the court of cassation instance verifies whether the court of appellate instance has correctly applied substantive and procedural law. The court considers that the Court of Appeal has correctly applied the relevant law and correctly reached the conclusion that the claim was unsubstantiated. There is no ground for quashing the [Court of Appeal's] judgment.” 29. On the same day, 1 December 2005, the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Barda City Electoral Constituency no.", "93. II. RELEVANT DOMESTIC LAW A. Electoral Code 30. The following are the relevant provisions of the Electoral Code as effective at the material time.", "1. Electoral commissions: system, composition and decision-making procedure 31. Elections and referenda are organised and carried out by electoral commissions, which are competent to deal with a wide range of issues relating to the electoral process (Article 17). There are three levels of electoral commissions: (a) the Central Electoral Commission (“the CEC”); (b) constituency electoral commissions (“the ConEC”); and (c) precinct (polling station) electoral commissions (“the PEC”) (Article 18.1). 32.", "Each electoral commission at every level has a chairperson and two secretaries who are elected by open voting by members of the relevant electoral commission. The chairperson of each electoral commission at every level must be a representative of the political party holding the majority of parliamentary seats in the Milli Majlis. One of the secretaries must be a representative of the political parties holding the minority of parliamentary seats, and the other one a representative of “independent” members of parliament who are not formally affiliated with any political party (hereafter also referred to as “the non-partisan members of parliament”) (Article 19.3). 33. Meetings of electoral commissions at every level are convened either by the chairperson or by at least one third of the relevant commission's members (Article 19.5).", "A quorum for meetings of any electoral commission is at least two-thirds of its members (Article 19.10). The qualified majority vote of two-thirds of the members who are in attendance is required for adoption of decisions of any commission at any level (Articles 28.2, 34.3 and 39.3). 34. The CEC consists of eighteen members who are elected by the Milli Majlis. Six members of the CEC are directly nominated by and represent the political party holding a majority of seats in the Milli Majlis, six members are nominated by and represent the non-partisan members of parliament, and six members are nominated by and represent all the political parties holding a minority of parliamentary seats.", "Out of the six nominees representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed by the representatives of the majority party and the other is agreed by the representatives of the minority parties (Article 24). 35. Each ConEC consists of nine members who are appointed by the CEC. Three members of the ConEC are nominated by the CEC members representing the parliamentary majority party, three members are nominated by the CEC members representing the parliamentary minority parties, and three members are nominated by the CEC members representing the non‑partisan members of parliament. Local branches of the relevant political parties may suggest candidates to ConEC membership for nomination by the CEC members representing the relevant parties.", "Out of the three candidates nominated by the CEC members representing the non-partisan members of parliament, two candidates are nominated “in agreement” with the “interested parties”: one of the nominees is agreed with the CEC members representing the parliamentary majority party and the other is agreed with the CEC members representing the parliamentary minority parties (Article 30). 36. Each PEC consists of six members appointed by the relevant ConEC. Two members of the PEC are nominated by the ConEC members representing the parliamentary majority party, two members are nominated by the ConEC members representing the parliamentary minority parties, and two members are nominated by the ConEC members representing the non‑partisan members of parliament. Local branches of the relevant political parties may suggest candidates for PEC membership for nomination by the ConEC members representing the relevant parties.", "As to candidates for PEC membership nominated by the ConEC members representing the non‑partisan members of parliament, these candidates may also be suggested to the relevant ConEC members by voters or voters' initiative groups. These candidates must be citizens of the Republic of Azerbaijan who permanently reside within the territory of the relevant electoral constituency (Article 36). 2. Examination of electoral disputes 37. Candidates and other affected persons may complain about decisions or actions (or omissions to act) violating electoral rights of candidates or other affected persons, within three days after publication or receipt of such decisions or occurrence of such actions (or omissions) or within three days after an affected person has become aware of such decisions or actions (or omissions) (Article 112.1).", "38. Such complaints can be submitted directly to a higher electoral commission (Article 112.2). If a complaint is first decided by a lower electoral commission, a higher electoral commission may quash its decision or adopt a new decision on the merits of the complaint or remit the complaint for a new examination (Article 112.9). Decisions or actions (or omissions to act) of a ConEC may be appealed to the CEC, and decisions or actions (or omissions to act) of the CEC may be appealed to the appellate court (Article 112.3). 39.", "If the examination of the complaint reveals a suspicion that a criminal offence has been committed, the relevant prosecuting authority can be informed thereof. The CEC must adopt a reasoned decision in this regard. The relevant prosecution authority must examine this information within a three-day period (Article 112.4). 40. In cases stipulated in the Electoral Code, the courts are empowered to quash decisions of the relevant electoral commissions, including decisions concerning voting results and election results (Article 112.5).", "41. While examining requests to invalidate the election of a specific candidate, the relevant electoral commission has a right to hear submissions of citizens and officials as well as obtain required documents and materials (Article 112.8). 42. The relevant electoral commission shall adopt a decision on any complaint submitted during the election period and deliver it to the complainant within three days of receipt of the complaint, except for complaints submitted on election day or the day after election day, which shall be examined immediately (Article 112.10). 43.", "Complaints concerning decisions of electoral commissions shall be examined by courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11). 44. Persons illegally interfering with the election process and otherwise violating electoral rights of voters and candidates may bear criminal, civil or administrative responsibility under the Criminal Code, the Civil Code or the Code of Administrative Offences (Article 115). 3.", "Vote-counting, tabulation and approval of election results 45. After the count of votes in a polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the voting in the polling station (Articles 106.1‑106.6). One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within twenty‑four hours (Article 106.7). The ConEC verifies whether each PEC protocol and documents attached to it comply with the law and whether there are any inconsistencies (Article 107.1). After submission of all PEC protocols, the ConEC tabulates, within two days of election day, the results from different polling stations and draws up a protocol (in three original copies) reflecting the aggregate results of the vote in the constituency (Articles 107.2 -107.7).", "One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC verifies whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2). 46. The Constitutional Court reviews and approves the results of the elections (Article 171.1). For this purpose, the CEC reviews the ConEC protocols, together with other relevant documents, during a period of no more than twenty days after election day, and then submits them to the Constitutional Court within forty-eight hours (Article 171.2).", "47. Within ten days of receipt of the above documents, the Constitutional Court reviews, with the assistance of experts, whether they are in accordance with the requirements of the Electoral Code. If necessary, this ten-day period may be extended (Article 171.3). B. Code of Civil Procedure 1.", "Written evidence 48. A civil court examines and relies only on evidence submitted by the parties (Article 14.2). 49. Each party to the civil proceedings must submit evidence proving the facts forming the basis of their claims and objections (Article 77.1). In disputes concerning invalidation of acts of the State, administrative and other authorities, the burden of proving the facts forming the basis of such acts falls upon the relevant authority (Article 77.2).", "In the event that the examination of the case on the basis of the evidence available in the case file is impossible, the court may request the parties to submit additional evidence (Article 77.3). 50. Written evidence must be submitted to courts either in original or in duly certified copies. If only a part of a document is relevant to the case under examination, a certified extract must be submitted (Article 89.3). 2.", "Proceedings concerning electoral disputes 51. Chapter 25 of the CCP sets out rules for examination of applications concerning the protection of electoral rights (or a right to participate in a referendum). According to Article 290, such applications shall be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code. 52. Applications concerning the protection of electoral (referendum) rights shall be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which shall be examined immediately (Article 291.1).", "The court shall hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification shall not preclude the court from examining and deciding the case (Article 291.2). 53. The appellate court's decision can be appealed to the higher court (the court of cassation) within three days. This appeal shall be examined within three days, or immediately if submitted on election day or the next day.", "The decision of the court of cassation is final (Article 292). III. RELEVANT INTERNATIONAL DOCUMENTS A. Code of Good Practice in Electoral Matters 54. The relevant excerpts from the Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report) (CDL-AD (2002) 23 rev), adopted by the European Commission for Democracy Through Law (“the Venice Commission”) at its 51st and 52nd sessions (5-6 July and 18‑19 October 2002), read as follows: “GUIDELINES ON ELECTIONS ... 3.", "Procedural guarantees 3.1. Organisation of elections by an impartial body a. An impartial body must be in charge of applying electoral law. b. Where there is no longstanding tradition of administrative authorities' independence from those holding political power, independent, impartial electoral commissions must be set up at all levels, from the national level to polling station level.", "c. The central electoral commission must be permanent in nature. d. It should include: i. at least one member of the judiciary; ii. representatives of parties already in parliament or having scored at least a given percentage of the vote; these persons must be qualified in electoral matters. It may include: iii. a representative of the Ministry of the Interior; iv.", "representatives of national minorities. e. Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly or on a proportional basis... ... h. It is desirable that electoral commissions take decisions by a qualified majority or by consensus. ... 3.3. An effective system of appeal a.", "The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible. b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals.", "... d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections. e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned. f. All candidates and all voters registered in the constituency concerned must be entitled to appeal.", "... g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance). h. The applicant's right to a hearing involving both parties must be protected. i. Where the appeal body is a higher electoral commission, it must be able ex officio to rectify or set aside decisions taken by lower electoral commissions. ... EXPLANATORY REPORT ... 3.1.", "Organisation of elections by an impartial body 68. Only transparency, impartiality and independence from politically motivated manipulation will ensure proper administration of the election process, from the pre-election period to the end of the processing of results. 69. In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organised by administrative authorities, and supervised by the Ministry of the Interior.", "70. However, in states with little experience of organising pluralist elections, there is too great a risk of government's pushing the administrative authorities to do what it wants. This applies both to central and local government - even when the latter is controlled by the national opposition. 71. This is why independent, impartial electoral commissions must be set up from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity.", "... 3.3. An effective system of appeal 92. If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.", "93. There are two possible solutions: - appeals may be heard by the ordinary courts, a special court or the constitutional court; - appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second. ... 95.", "Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections. In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision.", "A time limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings. 96. The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.", "... 99. Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections. 100.", "The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded. 101. The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats.", "This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes – annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated. 102.", "Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.” B. The Organisation for Security and Cooperation in Europe, Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Election Observation Mission Final Report on the Parliamentary Elections of 6 November 2005 55. The following are the relevant excerpts from this report, published in Warsaw, Poland on 1 February 2006: “III. POLITICAL BACKGROUND ... The 6 November 2005 elections to the Milli Majlis of Azerbaijan were the third parliamentary elections held in Azerbaijan since independence in 1991, but the first conducted after the adoption of the 2002 constitutional amendments, which eliminated the proportional list component of parliamentary elections.", "All 125 members of Parliament are now elected in single seat constituencies, in a single round of voting. The CEC registered 48 political parties and blocs for the 6 November elections. The New Azerbaijan Party (YAP), currently chaired by President Ilham Aliyev, has held a dominant position in government since 1993. On the opposition side there were two main blocs: 'New Politics' (YeS), formed by the Movement for National Unity, the National Independence Party of Azerbaijan, the Civil Forum for the Sake of Azerbaijan, the Azerbaijan Social Democratic Party as well as other political parties and NGOs, and 'Azadliq' ('Freedom'), which was formed by the parties Musavat, the Popular Front of Azerbaijan (APFP) and the Azerbaijan Democratic Party (ADP). Another party, which fielded candidates in over 60 constituencies, was the opposition Liberal Party of Azerbaijan.", "... V. ELECTION ADMINISTRATION The election was administered by a three-tiered system of election commissions ... There are 125 constituency election commissions and 5,137 polling station election commissions. All election commissions have a 2/3 requirement for quorum and for adopting decisions. The transitional method of composition of election commissions continued to be problematic, as it favored the incumbent authorities and undermined confidence in the independence of the election administration. Election commissions are formed according to a complex formula, and in essence, pro-government parties have a majority in all election commissions sufficient to make all decisions.", "Moreover, the chairpersons of all election commissions were nominated by the parliamentary majority. The CEC held regular meetings open to media and observers, and most decisions were published and available on its website. The CEC met most deadlines of the Election Code regarding technical preparations for the elections. An extensive voter education effort was conducted through the media. A number of aspects of the CEC's performance were problematic, however, including processing of complaints and appeals, ensuring the uniform implementation of the Election Code by ConECs and PECs, and organization of military voting.", "Observers reported uncertainty and confusion on the interpretation and application of some legal and procedural issues by ConECs and PECs. A number of election commissions operated in a transparent and collegial manner, and a few issued warnings to candidates or officials for violating the law. However, during the pre-election period, commission members nominated by opposition parties in some constituencies claimed that they were in a number of instances not informed of ConEC meetings, denied access to key documents and had little influence on the decision-making process. The OSCE/ODIHR EOM [Election Observation Mission] was able to verify some of these claims. ... VII.", "CAMPAIGN ... The general campaign environment was characterized by the fact that the ruling YAP party dominated government and most district administrations, including the election commissions. ... The campaign was undermined by numerous cases of interference of local executive authorities in the election process, with widespread evidence that such interference either favored candidates associated with the incumbents or disadvantaged opposition candidates. ... [M]any candidates and campaign staff were harassed during the course of their campaign activities, for example, while meeting with voters, displaying posters or distributing leaflets.", "... The EOM received a number of reports from citizens, particularly from the regions, regarding heads of schools, hospitals and State-owned companies who collected signatures that allegedly obliged staff to vote for selected candidates. The OSCE/ODIHR EOM also received reports of intimidation and coercion of school staff, students and parents to attend campaign events, predominantly in favor of YAP candidates. The 11 May and 25 October presidential decrees acknowledged many such issues and provided instructions to state and local executive bodies, with a view to ensuring that the parliamentary elections be conducted in full compliance with the Election Code. While the decrees addressed some of the shortcomings observed by the OSCE/ODIHR EOM, the overall lack of meaningful implementation undermined their objectives.", "... IX. COMPLAINTS AND APPEALS PRIOR TO ELECTION DAY In its 2003 Final Report, OSCE/ODIHR recommended that the CEC enact clear regulations governing the consideration of complaints and appeals. Similarly, it was recommended that safeguards be instituted to ensure that local executive authorities do not interfere in the electoral process or direct the work of the election commissions. These recommendations were not implemented and this had a significant and detrimental effect on the election complaints process. The Election Code envisages most complaints being filed with election commissions, but the law also allows complaints to be lodged with the superior election commission, with decisions in all cases to be made within a three-day deadline.", "In a large number of cases, candidates lodged complaints directly with the CEC, by-passing the respective ConEC even where the ConEC had not yet brought a decision on the respective complaint. This indicated a lack of confidence in the neutrality of the constituency commissions. The CEC formally registered all such complaints, but in the vast majority of cases merely returned them to the relevant ConEC for its decision, even where the ConEC had already made a prior decision. In many cases, ConECs did not decide complaints within the three-day deadline or issue an interim decision. Although some ConECs did try to adjudicate complaints in a transparent way, a number of ConECs addressed complaints belatedly and superficially.", "There were cases in which ConECs claimed not to have received complaints, when it was clear they had done so, did not sanction PEC officials who had discriminated against candidates, failed to notify candidates or observers when complaints were discussed or simply ignored complaints. ... In numerous cases, commission chairpersons were clearly biased in favor of YAP or pro-government candidates, and complaints from opposition or independent candidates in these constituencies did not receive impartial adjudication. Overall, the failure of election commissions, and subsequently in some instances the prosecutors, to address or rectify serious violations by local executive authorities and candidates had a marked and negative impact on the election process. Although some ConECs did issue written warnings to candidates and local executive officials, most violations during the campaign were allowed to take place without effective sanction.", "This further reduced confidence of candidates in the fairness of the process. ... XIII. ELECTION DAY A. Voting For the election on 6 November, 5,053 polling stations were established to serve voters across Azerbaijan. IEOM observers visited over 2,600 polling stations throughout the country.", "Voter turnout as reported by the CEC was 42.2 per cent, which is significantly lower than in previous general elections. Most IEOM observer teams reported that polling stations generally opened without delay. However, serious deviations from correct opening procedures, including failure to establish and announce the total amount of ballots and invalidate de-registration cards, took place in a number of polling stations. The opening was assessed as 'bad' or 'very bad' in 14 per cent of polling stations visited. Overall, IEOM observers assessed voting positively in 87 per cent of polling stations visited, while voting was assessed negatively in a considerable 13 per cent of polling stations visited, indicating systemic problems and/or irregularities.", "Voting was conducted in a generally calm atmosphere, although tension was reported at 14 per cent of polling stations visited. Serious violations of procedures included the presence of unauthorized persons, mainly representatives of local executive authorities, in 9 per cent of polling stations visited. Some of these persons were observed interfering in the work of the election commission or attempting to influence voter choice. The IEOM observed intimidation and attempts to influence voter choices in 6 per cent of polling stations visited. Other serious problems included cases of ballot box stuffing and inconsistent application of voter card rules, which was observed in one third of polling stations visited.", "Group or family voting remained an issue, as it was observed in 19 per cent of visits. Although relatively few people voted by mobile voting procedures, IEOM observers noted some cases in which more votes were cast than there were applications for ballots. Inking procedures, in particular the checking of voters' fingers for ink, were not properly followed in 11 per cent of polling stations visited, with several PECs not applying the inking procedure at all. ... Candidate representatives and non-partisan domestic observers were present in nearly all polling stations visited (97 per cent).", "However, there were observations of candidate representatives and PEC members being expelled or dismissed from polling stations in some cases. The IEOM observed local executive officials and observers of YAP candidates interfering in or directing the process, or otherwise attempting to influence voters. ... B. Counting IEOM observer teams were present at the count in 231 polling stations. The conduct of the election day process deteriorated sharply during the count.", "IEOM observers assessed the ballot counting process as bad or very bad in 41 per cent of counts observed. IEOM observers noted a wide range of serious violations during the count, including tampering with results protocols (12 per cent), result protocols not completed with ink (14 per cent), intimidation of observers (16 per cent) and unauthorized persons directing the process (14 per cent). Key procedures were not followed by more than one third of PECs. In some polling stations, the IEOM observed attempts by PEC members to inflate the vote for a selected candidate by swapping ballot papers from one stack to another. Candidate representatives or opposition-nominated PEC members were expelled from the count in a number of cases.", "In some cases, the count was interrupted and the process significantly delayed, in breach of the law. In several cases, protocols were not completed in the presence of observers, were left blank, or were not taken directly to the ConEC. The results protocols were not posted as required by law in 55 per cent of the counts observed. Observers reported that entitled persons received the signed and stamped copies of the protocol in only 83 per cent of the polling stations observed. C. Tabulation of Results The tabulation of results at constituency level was, overall, assessed as bad or very bad in 34 per cent of the 90 ConECs visited.", "Tabulation procedures were not followed consistently, and the organization of the work was assessed as poor or very poor in 21 per cent of cases observed. Several ConECs accepted empty or only partly completed protocols (including protocols completed with pencil) and did not take action against PEC chairs or members completing or changing protocols at the ConEC. ... XV. COMPLAINTS AND APPEALS AFTER ELECTION DAY A. Adjudication of Complaints by the CEC On and after election day, the CEC received and registered more than 1,000 complaints but did not address most of these complaints. Complaints that did receive attention were not considered transparently or in accordance with the law.", "Although the law requires the CEC to decide on all complaints , the CEC failed to fully meet this legal obligation. ... The CEC did not inform complainants on consideration of their complaints at the CEC session, and complainants were not granted the right to give explanations or present new evidence. Moreover, the CEC did not conduct a formal investigation or review of complaints at its sessions. Instead an individual commission member, as a rule a member representing the voting majority, investigated the complaint and reported on his or her findings.", "These reports did not give other CEC members complete information on the complaint. Notwithstanding the large number of complaints, the CEC met infrequently and completed its final protocol without considering all pending complaints. ... ... B. Adjudication of Appeals by the Court of Appeal and the Supreme Court The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. In total, the Court of Appeal received 71 appeals and complaints in the post-election period. The Supreme Court received nine appeals during the post-election period until 23 November.", "The OSCE/ODIHR EOM observed eight hearings in the Court of Appeal and seven hearings in the Supreme Court. In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court. ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 TO THE CONVENTION 56.", "Relying on Article 3 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicant complained that, in the electoral constituency where he stood as a candidate in the parliamentary elections, there had been a number of serious irregularities and breaches of electoral law which had made it impossible to determine the true opinion of voters and thus had infringed his right to stand as a candidate in free elections. The domestic authorities, including the electoral commissions and courts, had failed to duly examine his complaints and to investigate his allegations concerning the mentioned irregularities and breaches of electoral law. He also argued that one of the reasons for this failure was the method of composition of electoral commissions at all levels, which allegedly placed the majority of votes within each commission under the control of the ruling political forces and made the commissions prone to take politically‑motivated decisions disadvantaging opposition candidates. 57.", "Having regard to the special features of the present case, the Court considers that this complaint falls to be examined only under Article 3 of Protocol No. 1 to the Convention and that no separate examination is necessary under Article 13. Article 3 of Protocol No. 1 reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. Admissibility 58. The Government argued that the applicant had not exhausted domestic remedies in respect of the part of the complaint relating to the method of composition of the electoral commissions.", "They argued that the applicant could have raised this issue before the domestic courts, but he had failed to do so. 59. The applicant argued that the remedy suggested was ineffective. 60. The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof.", "It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV, and Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V). The Court further emphasises that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI). The Court is not persuaded by the Government's arguments.", "The Government failed to provide explanation as to how a complaint to the domestic courts concerning the method of composition of electoral commissions, made during the electoral process, could provide the applicant with adequate and timely redress. Within the framework of the appeal system for election-related complaints, the Court of Appeal and the Supreme Court were competent (at least theoretically under the domestic law) to hear appeals against decisions of electoral commissions concerning a wide variety of electoral matters. However, it appears that the relevant courts had no competence to alter the method of composition of electoral commissions, which was prescribed in detail by the Electoral Code, and especially so in the midst of the electoral process. The Government have not suggested any other form of redress that could have possibly been provided by the domestic courts and that could be considered adequate. For these reasons, the Government's objection must be dismissed.", "61. Furthermore, the Court considers that the complaint, as a whole, is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties' submissions 62. The Government submitted that the elections at Barda City Electoral Constituency no. 93 had been conducted in accordance with the requirements of the Electoral Code. The Government argued that the documents submitted by the applicant (mainly observers' affidavits), allegedly proving the irregularities in the constituency, had been in fact compiled only by the applicant's supporters and representatives in various polling stations. In any event, the allegations made by the applicant in reliance on those affidavits contained either “general expressions” or referred to types of alleged infringements which could not seriously affect the election results.", "They were frequently of speculative nature rather than referring to specific facts. The alleged breaches of electoral law were insignificant and concerned minor local incidents and, thus, did not have a substantial impact on the conduct of the election in the constituency as a whole. The Government argued that, in any event, the difference between the official total numbers of votes received by the winning candidate and the applicant (5,816 votes against 2,001) had been so significant that, even if the applicant could prove that the irregularities alleged by him had indeed taken place, they could not have affected the ultimate result of the election. 63. Further, relying on Babenko v. Ukraine ((dec.), no.", "43476/98, 4 May 1999), the Government argued that, taking into account the existence of the domestic authorities' decisions concerning the essence of the applicant's claims, the Court should limit itself to examining only whether those decisions were arbitrary. 64. In this respect, the Government maintained that there were effective remedies available at the domestic level which were capable of providing redress for the kind of election-related matters the applicant complained of. The relevant domestic authorities and courts had duly examined the applicant's complaints and found them unsubstantiated. Contrary to the applicant's claim that the electoral commissions had ignored his complaints, the ConEC actually examined them and even demanded explanations from the relevant PECs.", "Although the ConEC found that the conditions of some voting areas in some polling stations had indeed been poor, all the applicant's remaining allegations were found to be groundless and untrue. The applicant's subsequent appeals to the domestic courts were not supported by admissible or sufficient evidence and therefore the courts had correctly dismissed his complaints as unsubstantiated. 65. As to the method of composition of electoral commissions, the Government argued that the commissions were composed on a parity basis that did not allow any political force to obtain control over the decision‑making process within any commission at any level. They noted that the parliamentary majority party could only directly nominate one-third of the members of each commission, while the majority of at least two‑thirds of commission members' votes was required by law for adoption of any commission decisions.", "Although by law every chairperson of every commission was elected from among the representatives of the ruling party, this did not affect the decision-making process within the commission as the chairperson did not possess a decisive or tie-breaking vote. The Government concluded that electoral commissions were generally independent and impartial and that, in any event, there could have been no lack of impartiality in the present case, as the applicant's opponent, Z.O., was not even a member of the ruling party. 66. The applicant submitted that he had been unable to benefit from an environment in which elections were free and fair and that the relevant State authorities had not duly reacted to the existence of numerous infringements of the electoral law in his constituency. He reiterated his allegations concerning specific instances of alleged irregularities that had taken place in his constituency and maintained that the sheer scale of these irregularities undermined the free expression of the opinion of the people voting in the constituency.", "In support of his arguments, the applicant also relied heavily on a number of reports by international organisations and mass media sources which contained general criticism of the various aspects of the parliamentary elections of 6 November 2005 in Azerbaijan. 67. The applicant further maintained that those irregularities prejudiced the outcome of the election. Had all his allegations been examined and assessed fairly, his corrected official vote total would have actually been higher than that of Z.O. and he would have won the election.", "68. The applicant argued that he had been unable to obtain an effective examination of his election-related complaints. Again, relying heavily on excerpts from various reports and recommendations concerning the elections of 6 November 2005 prepared by various observation missions, he argued that, in general, there had been many shortcomings in how the existing mechanism for addressing election-related complaints functioned in practice. As to his specific case, he argued that he had presented sufficient evidence to the domestic electoral commissions and courts in support of his claims, but the latter had used formal grounds in order to avoid examining the essence of his complaints and had not given him an opportunity to submit duly certified copies of the relevant evidence, if this was deemed absolutely necessary. 69.", "Lastly, the applicant claimed that in reality the majority of members of every electoral commission at every level were either the direct nominees of the ruling party or “persons supporting the ruling party”. The applicant appeared to imply (without clearly stating it) that commission members formally nominated by non-partisan members of parliament were usually, in practice, pro-ruling-party persons, albeit not formally affiliated with the ruling party. The applicant also claimed that, although Z.O. was a member of the Motherland Party, this party was politically very close to the ruling Yeni Azerbaijan Party. That is why, in his opinion, the ruling party was in favour of him winning the election against the opposition candidates.", "2. The Court's assessment 70. Article 3 of Protocol No. 1 appears at first sight to differ from the other rights guaranteed in the Convention and Protocols, as it is phrased in terms of the obligation of the High Contracting Party to hold elections which ensure the free expression of the opinion of the people rather than in terms of a particular right or freedom. However, the Court has established that it guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, §§ 46-51, Series A no.", "113). The Court has consistently highlighted the importance of democratic principles underlying the interpretation and application of the Convention and emphasised that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (ibid., § 47; see also Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 58, ECHR 2005‑IX).", "71. The rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for “implied limitations” and Contracting States have a wide margin of appreciation in the sphere of elections (see Mathieu-Mohin and Clerfayt, cited above, § 52; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; and Labita v. Italy [GC], no.", "26772/95, § 201, ECHR 2000-IV). It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. In particular, it has to satisfy itself, among other things, that the conditions in which individual rights are exercised in the course of the electoral process do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness (see Mathieu-Mohin and Clerfayt, cited above, § 52, and Gitonas and Others v. Greece, 1 July 1997, § 39, Reports of Judgments and Decisions 1997-IV). Such conditions must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage (see Hirst (no.", "2), cited above, § 62). 72. Furthermore, the object and purpose of the Convention, which is an instrument for the protection of human rights, requires its provisions to be interpreted and applied in such a way as to make their stipulations not theoretical or illusory but practical and effective (see, among many other authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 33, Reports 1998‑I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999‑III; and Lykourezos v. Greece, no. 33554/03, § 56, ECHR 2006‑VIII).", "In the case of Podkolzina v. Latvia, the Court stated that the right to stand as a candidate in an election, which is guaranteed by Article 3 of Protocol No. 1 and is inherent in the concept of a truly democratic regime, would only be illusory if one could be arbitrarily deprived of it at any moment. Consequently, while it is true that States have a wide margin of appreciation when establishing eligibility conditions in the abstract, the principle that rights must be effective requires that the eligibility procedure contain sufficient safeguards to prevent arbitrary decisions (see Podkolzina v. Latvia, no. 46726/99, § 35, ECHR 2002-II). Although originally stated in connection with the conditions on eligibility to stand for election, the principle requiring prevention of arbitrariness is equally relevant in other situations where the effectiveness of individual electoral rights is at stake (see, mutatis mutandis, Kovach v. Ukraine, no.", "39424/02, § 55, ECHR 2008‑...). 73. Lastly, the Court has also had an occasion to emphasise that it is important for the authorities in charge of electoral administration to function in a transparent manner and to maintain impartiality and independence from political manipulation (see The Georgian Labour Party v. Georgia, no. 9103/04, § 101, 8 July 2008). 74.", "In the present case, the Court will first have regard to the Government's argument that the difference in the official vote totals received by Z.O. and the applicant was so significant that, even if the applicant's allegations concerning some election irregularities in various polling stations were true, it would not affect the ultimate result of the election. The Court cannot accept this argument. In order to arrive at the conclusion proposed by the Government, it is first necessary to separately assess the seriousness and magnitude of the alleged election irregularity prior to determining its effect on the overall outcome of the election. However, in the present case, the question whether this has been done in a diligent manner is a major point of contention between the parties in the context of the present complaint and, therefore, cannot escape the Court's review.", "75. Moreover, in any event, what is at stake in the present case is not the applicant's right to win the election in his constituency, but his right to stand freely and effectively for it (compare The Georgian Labour Party, cited above, § 121). The applicant was entitled under Article 3 of Protocol No. 1 to stand for election in fair and democratic conditions, regardless of whether ultimately he won or lost. In the present case, Article 3 of Protocol No.", "1 requires the Court not to ascertain merely that the election outcome as such was not prejudiced, but to verify that the applicant's individual right to stand for election was not deprived of its effectiveness and that its essence had not been impaired. For these reasons, the Government's above argument must be dismissed. 76. Turning to the assessment of the substance of the applicant's complaint under the Convention, the Court notes that the applicant complained of numerous instances of irregularities and breaches of electoral law which had allegedly taken place prior to and during election day in numerous polling stations in his electoral constituency. In doing so, he essentially reiterated the detailed claims he had made before the domestic authorities (see paragraphs 9-18 and 24 above).", "He maintained that due to these irregularities in themselves, as well as the domestic authorities' failure to duly address them, the election in his constituency had not been free and democratic and the official election results had not reflected the real opinion of voters. 77. As for the applicant's claims concerning the specific instances of alleged irregularities, the Court notes that, although the evidence presented by the applicant in support of his claims can be considered strong (see paragraphs 78-79 below), in the circumstances of the present case it is not in a position to assume a fact-finding role by attempting to determine whether all or part of these alleged facts had taken place and, if so, whether they had amounted to irregularities capable of thwarting the free expression of the opinion of the people. Owing to the subsidiary nature of its role, the Court must be cautious in taking on the function of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Moreover, the Court is not required under the Convention to verify whether any alleged irregularity had amounted to a breach of Azerbaijani electoral law (see I.Z.", "v. Greece, no. 18997/91, Commission decision of 28 February 1994, Decisions and Reports 76-B, p. 65, at p. 68). Again, the Court reiterates that its task under Article 3 of Protocol No. 1 is rather to satisfy itself, from a more general standpoint, that the respondent State has complied with its obligation to hold elections under free and fair conditions and ensured that individual electoral rights were exercised effectively. 78.", "That being said, the Court cannot but acknowledge the seriousness of the claims made by the applicant before the domestic authorities. In particular, he complained of unlawful interference in the election process by local executive authorities, undue influence on voter choice, several instances of ballot-box stuffing, harassment of observers, irregularities in electoral rolls and obvious discrepancies in PEC protocols showing a possible failure to account for as many as thousands of “unused” blank ballots. The Court considers that these types of irregularities, if duly confirmed to have taken place, were indeed potentially capable of thwarting the democratic nature of the elections. The Court further notes that the applicant's allegations were based on the relevant evidence, which consisted mainly of affidavits signed by official observers, who gave fact-specific accounts of the alleged irregularities witnessed by them. The Court also has regard to the Final Report of the OSCE/ODIHR Election Observation Mission concerning the elections of 6 November 2005 (see paragraph 55 above), which indirectly corroborates the applicant's claims.", "While this report did not contain any information relating exclusively to the applicant's constituency, it gave a general account of the most frequent problems identified during the election process. The problems identified were similar to almost all of the applicant's specific allegations and, while not observed in most of the constituencies, appeared nonetheless to have been quite common. 79. In the light of the above considerations, and having regard to the material in the case file, the Court considers that the applicant has put forward a very serious and arguable claim disclosing an appearance of a failure to hold free and fair elections in his constituency. 80.", "The Court reiterates the approach taken by it in the Babenko case (cited above) where, having satisfied itself that there had been no arbitrariness in the conclusions reached by a domestic court which had examined the applicant's specific claims concerning breaches of electoral law and established that they had not prejudiced the elections, the Court accepted and relied on the domestic court's conclusions in its analysis of the applicant's complaint under Article 3 of Protocol No. 1. It was emphasised in that case that, where complaints of election irregularities had been addressed at the domestic level, the Court's examination should be limited to verifying whether any arbitrariness could be detected in the domestic court procedure and decisions. 81. In this connection, having regard to the principles developed by its case-law on Article 3 of Protocol No.", "1 (see paragraphs 70-73 above), the Court considers that the existence of a domestic system for effective examination of individual complaints and appeals in matters concerning electoral rights is one of the essential guarantees of free and fair elections. Such a system ensures an effective exercise of individual rights to vote and to stand for election, maintains general confidence in the State's administration of the electoral process and constitutes an important device at the State's disposal in achieving the fulfilment of its positive duty under Article 3 of Protocol No. 1 to hold democratic elections. Indeed, the State's solemn undertaking under Article 3 of Protocol No. 1 and the individual rights guaranteed by that provision would be illusory if, throughout the electoral process, specific instances indicative of failure to ensure democratic elections are not open to challenge by individuals before a competent domestic body capable of effectively dealing with the matter.", "82. The Azerbaijani law provided for a system of examination of individual election-related complaints and appeals, consisting of electoral commissions of different levels, whose decisions could be appealed subsequently to the Court of Appeal and further to the Supreme Court. The applicant made use of this system. It remains to be seen whether the examination of the applicant's claims by the electoral commissions and courts was effective and devoid of arbitrariness. 83.", "According to the applicant, the electoral commissions did not even reply to his complaints. The Government, however, presented proof that his complaint had been examined by the ConEC. However, having regard to the documents submitted by the Government, the Court notes that, while the ConEC took as long as sixteen days to deliver its decision (which was considerably longer than the three-day time-limit provided by the Electoral Code), it did nothing more than request written explanations from the relevant PEC chairmen and members. Given that the confirmation of these allegations could potentially entail responsibility on the part of these PEC officials for the election irregularities, it is not surprising that all of them simply denied any wrongdoing using the most general wording. For this reason, and having regard to their content, the Court is not convinced that these statements were particularly helpful in determining the factual accuracy of the applicant's claims.", "Nevertheless, the ConEC appeared to have relied exclusively on the statements of PEC officials in deciding to dismiss the applicant's complaint, without explaining why these statements were considered to be more reliable than the much more detailed and fact‑specific evidence presented by the applicant. In fact, no reason was offered by the ConEC in support of its finding that the applicant's claims were “unsubstantiated”. There is no indication that any detailed assessment of the substance of the applicant's allegations was attempted or that any genuine effort was made to determine the validity of his claims (contrast Babenko, cited above, where a domestic court examined each specific allegation of election irregularity in detail and assessed its effect on the election). 84. As for the complaint lodged directly with the CEC, the Court notes that the applicant has submitted documentary evidence proving that his complaint was received by the CEC on 8 November 2005.", "However, it appears that the CEC indeed ignored the applicant's complaint and left it unexamined. This is despite Article 112.2 of the Electoral Code, which provided an opportunity to lodge any election-related complaints directly with a “superior electoral commission”, which term appeared to include the CEC. The Court again refers to the OSCE/ODIHR report, which noted that “in the vast majority of cases” the CEC merely transmitted individual complaints to the relevant ConECs without examining them, and that it “did not address most of [the] complaints” it received on and after election day. In the instant case, no explanation has been forthcoming from the Government as to the reasons for the CEC's failure to deal with the applicant's complaint despite the requirements of the Electoral Code. 85.", "The applicant's subsequent appeals lodged with the Court of Appeal and the Supreme Court were not addressed adequately either. In particular, both courts relied on extremely formalistic reasons to avoid examining the substance of the applicant's complaints, finding that he had not submitted duly certified copies of the relevant observers' affidavits and that he had not attached to his cassation appeal documentary proof that he had indeed applied to the CEC. It is not the Court's task to assess whether, from the standpoint of the domestic law, the domestic courts were correct to apply so strictly the civil procedure rules on admissibility of written evidence to a case giving rise to election-related issues which normally fall within the realm of public law. In the circumstances of the present case, however, the Court finds that such a rigid and overly formalistic approach was not justified under the Convention. 86.", "In this respect, the Court recalls the Venice Commission's Code of Good Practices in Electoral Matters, which cautions against excessive formalism in examination of election-related appeals, in particular where the admissibility of appeals is concerned (see paragraph 54 above). 87. As mentioned above, the Court considers that the applicant was able to put forward an arguable claim disclosing an appearance of a potentially serious violation of electoral rights and this claim was supported by relevant argumentation and evidence. This evidence included copies of observers' affidavits which appeared to be prima facie authentic. Although the applicant did not submit to the courts notarised copies of those affidavits, he claimed at the oral hearing in the Supreme Court that he had submitted the originals to the CEC.", "In such circumstances, the Court finds it puzzling that the domestic courts did not attempt to request the CEC to confirm whether it was in possession of those originals or to otherwise establish the authenticity of those affidavits. At the very least, the courts should have allowed the applicant an opportunity to supplement his written submissions with any additional evidence deemed necessary (such as documentary proof that he had indeed applied to the CEC). 88. The Court considers that, in order to ensure the State's compliance with its positive obligation under Article 3 of Protocol No. 1 to hold free elections, the domestic courts dealing with the present case, having been called upon to decide on an arguable claim concerning election irregularities, should have reacted by taking reasonable steps to investigate the alleged irregularities without imposing unreasonable and excessively strict procedural barriers on the individual complainant.", "What was at stake in those proceedings was not only the alleged infringement of the applicant's individual rights but also, on a more general level, the State's compliance with its positive duty to hold free and fair elections. Therefore, even assuming that the courts in the present case might have been unable to decide the case solely on the basis of the evidence submitted by the applicant, the material put before them was nevertheless strong enough to require them to take additional steps to obtain more information and verify the accuracy of the applicant's allegations which cast doubt on the free and fair character of the elections in his constituency. 89. Moreover, in any event, not all of the applicant's allegations were based on those observers' affidavits. His complaint also mentioned other alleged serious irregularities, including apparent inconsistencies in several PEC protocols disclosing potential large-scale tampering with ballots on the PEC level.", "In terms of initial evidence necessary for examination of this specific issue, the courts had to do nothing more than request the electoral commissions to submit those protocols to them for an independent examination. If such examination indeed revealed inconsistencies, a more thorough assessment of their impact on the election results would be necessary. However, the relevant court decisions were silent in respect of this part of the applicant's complaint. 90. The Court acknowledges that, owing to the complexity of the electoral process and associated time-restraints necessitating streamlining of various election-related procedures, the relevant domestic authorities may be required to examine election-related appeals within comparatively short time-limits in order to avoid retarding the electoral process.", "For the same practical reasons, the States may find it inexpedient to require these authorities to abide by a set of very strict procedural safeguards or to deliver very detailed decisions. Nevertheless, these considerations may not serve to undermine the effectiveness of the appeal procedure, and it must be ensured that a genuine effort is made to address the substance of arguable individual complaints concerning electoral irregularities and that the relevant decisions are sufficiently reasoned. In the present case, however, the conduct of the electoral commissions and courts and their respective decisions revealed an appearance of lack of any genuine concern for the protection of the applicant's right to stand for election. 91. The foregoing considerations are sufficient to enable the Court to conclude that the applicant's complaints concerning election irregularities were not effectively addressed at the domestic level and were dismissed in an arbitrary manner.", "92. In view of the conclusion reached in the above paragraph, the Court finds that it is not necessary for the purposes of the present case to further examine the applicant's arguments concerning the method of composition of the electoral commissions. 93. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Article 14 of the Convention 94. In conjunction with the above complaint, the applicant complained that during the entire election process he, as an opposition candidate, had been discriminated against due to his political affiliation and had not been allowed to run for election under equal conditions with the candidates affiliated with the incumbent party. He relied on Article 14, which provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 95.", "The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 96. However, having regard to its above finding in relation to Article 3 of Protocol No. 1, the Court considers that it is not necessary to examine whether in this case there has been a violation of Article 14. B.", "Article 6 of the Convention 97. The applicant complained under Article 6 of the Convention that the domestic judicial proceedings had been unfair and arbitrary. Article 6 of the Convention provides, in its relevant part, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 98. The Court notes that the proceedings in question involved the determination of the applicant's right to stand as a candidate in the parliamentary elections. The dispute in issue therefore concerned the applicant's political rights and did not have any bearing on his “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention (see Pierre-Bloch v. France, 21 October 1997, § 50, Reports 1997-VI; Cherepkov v. Russia (dec.), no.", "51501/99, ECHR 2000-I; Ždanoka v. Latvia (dec.), no. 58278/00, 6 March 2003; and Mutalibov v. Azerbaijan (dec.), no. 31799/03, 19 February 2004). Accordingly, this Convention provision does not apply to the proceedings complained of. 99.", "It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 100. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Pecuniary damage 101. The applicant claimed 22,500 new Azerbaijani manats (AZN) in respect of various expenses related to his electoral campaign, such as expenses for publication of his campaign advertisement, salaries paid to his campaign staff, renting office space for his election headquarters, etc. 102. The Government noted that the applicant failed to support this claim with any documentary evidence. They further argued that campaign expenses could not be claimed as pecuniary damage and that, in any event, part of each candidate's campaign expenses were borne by the State in accordance with the domestic law.", "103. The Court notes that the present application was about the applicant's right to stand for election. It cannot be assumed that, had the applicant's right not been infringed, he would necessarily have won the election in his constituency and become a member of parliament. Therefore, it cannot be speculated that the expenditure on his electoral campaign was a pecuniary loss (compare The Georgian Labour Party, cited above, § 150). As no causal link has been established between the alleged pecuniary loss and the violation found, the Court dismisses the applicant's claim under this head.", "2. Non-pecuniary damage 104. The applicant claimed AZN 200,000 in respect of non-pecuniary damage caused by the infringement of his electoral rights. 105. The Government argued that the amount claimed was excessive and considered that finding of a violation of the Convention would constitute sufficient just satisfaction in itself.", "106. The Court considers that the applicant suffered non-pecuniary damage which cannot be compensated solely by the finding of the violation of Article 3 of Protocol No. 1. Ruling on an equitable basis, the Court awards him the sum of 7,500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable. B.", "Costs and expenses 107. The applicant claimed AZN 2,000 for legal fees incurred in the proceedings before the Court, AZN 1,500 for translation expenses and AZN 1,000 for postal expenses. In support of his claims, he submitted a contract for legal services rendered in the proceedings before the Court and a contract for translation services. Both contracts stipulated that the amounts due were to be paid in the event that the Court found a violation of the applicant's rights. 108.", "The Government argued that the costs and expenses related to the legal and translation services had not actually been incurred, because the amounts claimed had not been paid by the applicant. They further argued that, in any event, the contract for legal services provided for excessive legal fees and included certain types of services which were not needed or expected in this case. As for the postal expenses, the Government noted that this part of the claim was unsupported by any evidence. 109. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "The Court notes that, although the applicant has not yet actually paid the legal fees and translation costs, he was bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the lawyer and translator are entitled to seek payment of their fees under the contract, those fees were “actually incurred”. However, taking into account the amount of legal work done in the present case and the total amount of material actually translated, the Court considers that the claims in respect of both the legal fees and translation expenses are excessive and therefore can be satisfied only partially. Furthermore, the Court notes that the applicant failed to support his claim for postal expenses with any documentary evidence and therefore no sum can be awarded in respect of those expenses. 110.", "Regard being had to the above, the Court considers it reasonable to award the sum of EUR 1,600 covering costs under all heads, plus any tax that may be chargeable to the applicant on that sum. C. Default interest 111. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints under Article 3 of Protocol No.", "1 to the Convention and Article 14 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 3. Holds that there is no need to examine separately the complaint under Article 14 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into new Azerbaijani manats at the rate applicable on the date of settlement: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and (ii) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.", "Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "SECOND SECTION CASE OF KLIKOVAC AND OTHERS v. SERBIA (Application no. 24291/08) JUDGMENT STRASBOURG 5 March 2013 This judgment is final but it may be subject to editorial revision. In the case of Klikovac and Others v. Serbia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Dragoljub Popović,Helen Keller, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 12 February 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 24291/08) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Serbian nationals, Mr Branko Klikovac, Mr Milovan Bačanac and Mr Radovan Vasić (“the applicants”), on 3 May 2008.", "2. All the applicants were initially represented by Mr S. Krstić, a lawyer practising in Kraljevo. On 27 September 2011 he informed the Court that he was no longer representing Mr Branko Klikovac and Mr Milovan Bačanac. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.", "On 29 June 2010 the President of the Second Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). 4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1942, 1953 and 1949 respectively and live in Kraljevo. 6. On 10 November 2004 the Kraljevo District Court (“the District Court”) ordered “MAGNOHROM d.o.o.” (“the debtor”), a company from Kraljevo, to pay the applicants in solidum 1,504,924 Serbian dinars (“RSD”) together with statutory interest and legal costs.", "This judgment became final on 6 July 2006. A. The enforcement proceedings 7. On 2 February 2007 the applicants filed a request for the enforcement of the above judgment proposing that it be carried out through the auctioning of the debtor’s specified immovable assets. 8.", "On 6 February 2007 the Kraljevo Municipal Court (“the Municipal Court”) issued a writ of execution (rešenje o izvršenju). The debtor appealed against that decision arguing that it was going through the process of restructuring as well as that the value of the impugned immovable assets exceeded the value of the applicants’ claims. On 9 March 2007 the District Court dismissed the appeal. 9. On an unspecified date 60 other enforcement claims submitted against the same debtor were joined to the applicants’ case.", "10. After several hearings and few unsuccessful public auctions, on 30 April 2010 the impugned assets were sold to a company from Bačka Palanka for RSD 151,663.077. 11. The final decision on division of the proceeds and the order of settlement of creditors was issued by the Municipal Court on 5 July 2011. The court ordered the partial settlement of all creditors in proportion to their claims and the amount obtained through the sale.", "12. Shortly thereafter the applicants’ claims were partially settled. B. The status of the debtor 13. The debtor was privatised on 21 July 2006.", "14. The sales contract was annulled on 28 December 2007 due to a buyer’s failure to fulfil the contractual obligations. 15. As of January 2008, the debtor still consisted of predominantly socially/State-owned capital. 16.", "On 28 May 2010 the Privatisation Agency ordered the restructuring of the debtor, which is still ongoing. Nevertheless, the enforcement proceedings under consideration in the present case have never been suspended or terminated on these grounds. II. RELEVANT DOMESTIC LAW 17. The relevant domestic law concerning the status of the socially-owned companies and the relevant provisions concerning the enforcement proceedings were outlined in the case of R. Kačapor and Others v. Serbia, nos.", "2269/06 et al., 15 January 2008, §§ 57-64 and §§ 71-76. Furthermore, the relevant provisions concerning the privatisation of socially-owned companies were outlined in the case of Crnišanin and Others v. Serbia, nos. 35835/05 et al., §§ 100-104, 13 January 2009. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No.", "1 TO THE CONVENTION 18. The applicants complained about the respondent State’s failure to enforce the final judgment of 10 November 2004. They relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. Article 6, in so far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 1 of Protocol No.", "1 to the Convention reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 20. The Court notes that the domestic judgment in the applicants’ favour was given on 10 November 2004 and it became final on 6 July 2006. The applicants sought enforcement on 2 February 2007.", "However, it has not been fully enforced until the present day. The Government did not advance any argument to justify this. 21. The Court has already found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in similar circumstances (see R. Kačapor and Others, cited above, §§ 115-116; Crnišanin and Others, cited above, § 123; and Rašković and Milunović v. Serbia, nos.", "1789/07 and 28058/07, § 79, 31 May 2011). It finds no reason to depart from that jurisprudence in the present. Accordinlgy, there has been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. 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 23. The applicants sought the payment of the outstanding judgment debt in respect of pecuniary damage and EUR 100,000 each in respect of non-pecuniary damage. The Government considered the claims excessive and unjustified.", "24. Having regard to the violations found in the present case and its own jurisprudence (see R. Kačapor and Others, cited above, §§ 123-126, and Crnišanin and Others, cited above, § 139), the Court considers that the applicants’ claim for pecuniary damage must be accepted. The Government shall, therefore, pay in respect of each applicant the outstanding debt from the final judgment of 10 November 2004. 25. As regards non-pecuniary damage, the Court considers that the applicants sustained some non-pecuniary loss arising from the breaches of the Convention found in this case.", "The particular amount claimed, however, is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant EUR 4,700 under this head. B. Costs and expenses 26. The applicants also claimed RSD 300,000 for the costs and expenses incurred before the domestic courts and approximately EUR 2,480 for those incurred before the Court.", "The Government considered the amounts excessive. 27. In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI). Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 450 under this head.", "28. As regards the costs and expenses incurred domestically, the Court notes that they are an integral part of the applicants’ pecuniary claims which have already been dealt with above. C. Default interest 29. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention; 3. Holds (a) that the respondent State shall, from its own funds and within three months, pay the outstanding debt owed to the applicants under the final judgment of 10 November 2004; (b) that the respondent State is to pay the applicants, within the same period, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 4,700 (four thousand seven hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; and (ii) EUR 450 (four hundred fifty euros) together, plus any tax that may be chargeable to the applicant, in respect of cots and expenses; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicants’ claim for just satisfaction.", "Done in English, and notified in writing on 5 March 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosPaulo Pinto de AlbuquerqueDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF STADNYUK v. UKRAINE (Application no. 30922/05) JUDGMENT STRASBOURG 27 November 2008 FINAL 27/02/2009 This judgment may be subject to editorial revision. In the case of Stadnyuk v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President,Karel Jungwiert,Volodymyr Butkevych,Renate Jaeger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska,Zdravka Kalaydjieva, judges,and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 4 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 30922/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Olena Yakivna Stadnyuk (“the applicant”), on 9 August 2005.", "2. The applicant was represented by Mr M. Stadnyuk, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3. On 11 October 2007 the Court decided to communicate the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1931 and lives in Andrushivka, Zhytomyr region, Ukraine. 5.", "By its judgment of 8 December 2000, the Andrushivka District Court awarded the applicant 700 Ukrainian hryvnyas (UAH) in compensation for pecuniary and non-pecuniary damage caused to her by Mr Y. It appears that this judgment became final and the enforcement proceedings were initiated. No further information about enforcement of this judgment is available. 6. In February 2002 the applicant lodged a claim with the Bogunsky District Court of Zhytomyr against the Bogunsky District Bailiffs’ Service of Zhytomyr (відділ державної виконавчої служби Богунського районного управління юстиції м. Житомира), alleging the latter’s inactivity in respect of the enforcement of the judgment of 8 December 2000 and claiming compensation for pecuniary and non-pecuniary damage she had sustained as a result.", "7. On 17 April 2003 the court found in part for the applicant and ordered the defendant to pay her a total of UAH 450.39[1]. The applicant did not appeal against this judgment. 8. On 21 November 2003 the Bogunsky District Bailiffs’ Service of Zhytomyr instituted enforcement proceedings.", "Subsequently, the latter transferred the enforcement writ to the Zhytomyr Regional Bailiffs’ Service (відділ примусового виконання рішень державної виконавчої служби Житомирської області) for enforcement. 9. In the course of these enforcement proceedings the Zhytomyr Regional Bailiffs’ Service requested the Bogunsky District Court of Zhytomyr to replace the Bogunsky District Bailiffs’ Service of Zhytomyr with the local department of the State Treasury of Ukraine, as the debtor under the judgment of 17 April 2003. On 28 October 2004 the court rejected this request. The applicant did not attend this hearing.", "10. On 21 May 2004 the State Treasury of Ukraine replied, upon the applicant’s request, that the 2004 State Budget of Ukraine did not provide funds for payment of compensation for damage caused by officials of the State Bailiffs’ Service. 11. Between July 2004 and April 2006 the Zhytomyr Regional Bailiffs’ Service several times terminated and resumed the enforcement proceedings in respect of the judgment of 17 April 2003. By the decision of 18 April 2006, the Zhytomyr Regional Bailiffs’ Service terminated the enforcement proceedings of the judgment of 17 April 2003 on the ground that the debtor had been liquidated.", "Apparently the applicant did not appeal against this decision. 12. The judgment of 17 April 2003 remains unenforced. II. RELEVANT DOMESTIC LAW 13.", "The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 14.", "Referring to Article 6 § 1 of the Convention, the applicant submitted that the length of the court proceedings against the bailiffs’ service was excessive. She also complained under this provision and Article 1 of Protocol No. 1 about the lengthy non-enforcement the judgment of 17 April 2003. The above provisions provide, in so far as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No.", "1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...” A. Admissibility 15. The Government contended that the applicant had not exhausted domestic remedies as she had not challenged the decision of the Zhytomyr Regional Bailiffs’ Service of 18 April 2006. They also maintained that the applicant had failed to show due diligence in the proceedings before the Bogunsky District Court of Zhytomyr aimed to replace the Bogunsky District Bailiffs’ Service of Zhytomyr with the local department of the State Treasury of Ukraine (see paragraph 9 above).", "They asserted in this regard that the applicant was no longer interested in the enforcement of the judgment in question. 16. The applicant disagreed. 17. The Court notes that in the instant case the applicant has obtained a judgment against the State which became final and enforceable.", "The Court reiterates that it is inappropriate to require an individual who has obtained judgment against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction (see Lizanets v. Ukraine, no. 6725/03, § 43, 31 May 2007 and the case-law referred therein). Nor should the applicant have been required to take any actions - for instance, those aimed at replacing one debtor State entity with another - in the course of the already instituted enforcement proceedings (see, mutatis mutandis, Vasylyev v. Ukraine, no. 10232/02, §§ 24-31, 21 June 2007). Therefore, it is not for the applicant to retune the enforcement proceedings, if they have already been instituted, to the changing structure of the State apparatus.", "Furthermore the applicant is not called on to reinstitute the terminated enforcement proceedings nor to challenge the decision to terminate them. Neither of these actions relieves the State of its obligation to enforce a final judgment against it. 18. The Court concludes that the applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 19. In their observations, the Government contended that there had been no violation of the provisions of the Convention in the applicant’s respect.", "They further maintained that the State authorities took all necessary measures to enforce the judgment in question. 20. The applicant disagreed. 21. The Court reiterates that the court proceedings and the enforcement proceedings are stages one and two in the total course of proceedings (see, Scordino v. Italy (no.", "1) [GC], no. 36813/97, § 197). Therefore, the enforcement proceedings should not be dissociated from the action and the proceedings are to be examined in their entirety (see Estima Jorge v. Portugal, judgment of 21 April 1998, Reports of Judgments and Decisions 1998‑II, § 35, and Sika v. Slovakia, no. 2132/02, §§ 24-27, 13 June 2006). 22.", "The Court notes that the consideration of the applicant’s case by the national court lasted from February 2002 to 17 April 2003 when the Bogunsky District Court of Zhytomyr found in the applicant’s favour. The length of proceedings in the judicial phase is therefore one year and two months and there is no discernible period of inactivity which can be attributed to the domestic court. 23. However, the judgment of 17 April 2003 remains unenforced for five years and six months. 24.", "The Court reiterates that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases like the present application (see, among other authorities, Voytenko v. Ukraine, cited above, §§ 43 and 55 and, as the recent one, Lysenko v. Ukraine, no. 18219/02, § 26, 7 June 2007). The Court finds no ground to depart from its case-law in the present case. 25.", "There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 in respect of the lengthy non-enforcement of the judgment in the applicant’s favour in the present application. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26. 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 27. The applicant claimed the outstanding debt in accordance with the judgment of 17 April 2003 in respect of pecuniary damage. She also claimed EUR 3,000 in respect of non-pecuniary damage. 28. The Government submitted that they did not question the necessity to enforce the judgment in the applicant’s favour.", "However, they found the claims in respect of non-pecuniary damage exorbitant and unsubstantiated. 29. The Court notes that it is undisputed that the State still has an outstanding obligation to enforce the judgment at issue. The Court further takes the view that the applicant must have sustained non-pecuniary damage as a result of the violations found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 450 in respect of non-pecuniary damage.", "B. Costs and expenses 30. In the present case the applicant failed to submit any claims; the Court therefore makes no award. C. Default interest 31. 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.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, (i) the outstanding debt in accordance with the judgment of 17 April 2003; (ii) EUR 450 (four hundred and fifty euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 27 November 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsRait Maruste Deputy RegistrarPresident [1] At the material time about 66.55 euros (EUR)" ]

[ "FOURTH SECTION CASE OF KWIEK v. POLAND (Application no. 51895/99) JUDGMENT STRASBOURG 30 May 2006 FINAL 30/08/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kwiek v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrM. Pellonpää,MrK. Traja,MrL. Garlicki,MrJ. Šikuta, judges, and M. O’Boyle, Section Registrar, Having deliberated in private on 9 May 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 51895/99) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Bogdan Kwiek (“the applicant”), on 17 August 1998. 2. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and subsequently, Ms S. Jaczewska, of the Ministry of Foreign Affairs. 3.", "The applicant alleged, in particular, that the authorities had violated his right to respect for correspondence guaranteed under Article 8. 4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).", "5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. On 17 June 2003 the Court declared the application partly admissible.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1968 and lives in Chełm, Poland. 9. On 10 September 1994 the applicant began serving a sentence of 5 years’ imprisonment that he had received for robbery on an unknown date. 10.", "On 16 December 1994 the Lublin Regional Prosecutor (Prokurator Rejonowy) charged him with homicide. On the same day the prosecutor also ordered that the applicant be detained on remand. 11. At the beginning of December 1995 the Regional Prosecutor lodged a bill of indictment with the Lublin Regional Court (Sąd Wojewódzki). The applicant was indicted on charges of homicide, aggravated robbery and possessing a firearm and ammunition without a licence.", "12. On 11 August 2000 the Lublin Regional Court convicted him of armed robbery and possessing a firearm and ammunition without a licence. 13. On 26 April 2001, on the applicant’s appeal, the Lublin Court of Appeal (Sąd Apelacyjny) partly amended the first-instance judgment. 14.", "The applicant did not file a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyzszy). A. The monitoring of the applicant’s correspondence 15. The applicant produced 6 envelopes. Some of them contain letters.", "All envelopes bear traces of having been opened after having been sealed; their sides were cut open and, in some instances, resealed with adhesive paper tape. 16. On an unknown date in December 1997 the applicant wrote a letter to his defence counsel. The envelope bears stamps: “Censored” (“cenzurowano”) and “ 1997-12-9”. 17.", "On 17 July 1998 the applicant’s defence counsel sent a letter to him. The envelope bears a stamp that reads: “Censored. R[egional] C[ourt] Lublin”. A hand written note indicates that on 21 July 1998 the letter was received at the Regional Court’s registry and posted to the applicant on the same day. 18.", "On 28 September 1998 a letter that the applicant received from the Constitutional Court was opened and stamped “censored” by the Lublin Regional Court. 19. On 21 October and 9 November 1998 the Regional Court opened and stamped “censored” 2 letters sent to the applicant by a certain O.K., his sister-in-law (“O.K.”). 20. On 15 April 1999 the Regional Court opened and censored a letter sent to the applicant by the Court’s Registry on 6 April 1999.", "In that letter the registry informed the applicant that his defence counsel had been asked to provide more detailed information of his trial. A copy of the registry’s letter to the counsel – which, in addition to the request for information, contained an explanation as to why the applicant’s complaint about the length of detention lacked prospects of success – was enclosed with that letter. II. RELEVANT DOMESTIC LAW 21. Until 1 September 1998 censorship of correspondence was effected under the provisions of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 19 April 1969 (“the 1969 Code”).", "The Code is no longer in force. On 1 September 1998 it was repealed and replaced by the “new” Code of Execution of Criminal Sentences of 6 June 1997 (“the 1997 Code”). A. Provisions in force before 1 September 1998 22. Pursuant to Article 89 § 2 of the 1969 Code, all correspondence of a detainee was, as a rule, censored, unless a prosecutor or a court decided otherwise.", "There was no legal means whereby a detainee could appeal against or, in any other way, contest the censorship of his correspondence or the scope of that measure (cf. Niedbała v. Poland, no. 27915/95, judgment of 4 July 2000, §§ 33-36). B. Provisions in force since 1 September 1998 23.", "Article 102 (11) of the 1997 Code provides that the convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. Article 103 of this Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows: “Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.” 24. Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”. Article 217 § 1, as applicable at the material time, read, in so far as relevant: “... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.” Pursuant to Article 214 § 1, “Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison.", "No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.” Article 242, as applicable at the material time, provided in § 5: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 25. The applicant complained that the censorship of his correspondence was contrary to Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his ... correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 26. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Monitoring of the correspondence before 1 September 1998 (a) Arguments before the Court 27. The applicant maintained that the authorities had censored his correspondence with his defence counsel and had, therefore, violated his right to respect for his correspondence. 28. The Government acknowledged that the applicant’s correspondence with his defence counsel had been censored.", "They further submitted that the contested measure had been applied pursuant to Article 89 of the 1969 Code. They consequently held that the censorship complained of had been carried out in compliance with Polish law. 29. The Government recalled that in the case of Niedbała v. Poland the Court had already dealt with the question of “automatic” censorship of detainee’s correspondence. However, in the present case they reserved their opinion on the alleged breach of Article 8 of the Convention.", "(b) The Court’s assessment 30. The Court notes that the Government acknowledged the fact that during the applicant’s detention the authorities had censored his correspondence with his defence counsel. It is, accordingly, common ground that in the present case there was an “interference by a public authority”, within the meaning of Article 8 § 2 of the Convention, with the applicant’s right to respect for his correspondence. 31. The Court further recalls that in the above-mentioned case of Niedbała v. Poland it found that Polish law concerning the control of correspondence in force before 1 September 1998 did not indicate with reasonable clarity the scope and manner of exercise of discretion conferred on public authorities (see Niedbała v. Poland, judgment cited above, §§ 81‑84).", "32. The Court sees no reason to distinguish the present case from the Niedbała case. Accordingly, the monitoring of the applicant’s correspondence with his defence counsel was not “in accordance with the law”. There has therefore been a breach of Article 8 of the Convention in respect of the period in question. 2.", "Monitoring of the correspondence after 1 September 1998 (a) Arguments before the Court 33. The applicant further submitted that the censorship of the correspondence sent to him by the Constitutional Court, the Court’s Registry and O.K. had been in breach of Article 8 of the Convention. 34. The Government did not dispute the fact that the censorship of the letter from the Constitutional Court, being a State authority within the meaning of Article 102 (11), and of the letter sent by the Court’s Registry constituted an interference with the applicant’s right to respect for his correspondence.", "They admitted that it had been in breach of Articles 102 (11) and 103 read in conjunction with Article 214 of the 6 June 1997 Code. In this respect, the Government pointed out that the rights of persons detained on remand should, in principle be at least equal to those of convicted persons serving a sentence of imprisonment. They submitted that under the above mentioned provisions both categories of correspondence were privileged and should not have been subjected to censorship. Accordingly, the measures imposed by the domestic authorities had been unlawful. However, the Government reserved their opinion on the alleged violation of Article 8 of the Convention in this respect.", "35. They further acknowledged that the censorship of two letters sent by O.K. constituted an interference with the applicant’s right to respect for his correspondence. They asserted that it had been based on the provisions of Article 217 § 1 of the 6 June 1997 Code. In the Government’s view, these provisions were adequately accessible and formulated with sufficient precision.", "They further considered that the censorship in question had been justified under paragraph 2 of Article 8. In this respect the Government submitted that the measure imposed had been necessary in a democratic society in the interests of public safety, for the prevention of crime. They claimed that in general the censorship of the detainee’s correspondence with private persons was necessary in order to secure the proper conduct of the proceedings. They concluded that in the present case the censorship had not amounted to a violation of Article 8 of the Convention. 36.", "Lastly, the Government stated that the 1997 Code, as it stood at the material time, had not provided any legal means to contest the censorship of the applicant’s correspondence. (a) Principles established under the Court’s case-law 37. Any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, Silver and others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34 and Niedbała v. Poland, judgment cited above, § 78).", "38. As to the expression “in accordance with the law”, the court has established three fundamental principles. The first one is that the interference in question must have some basis in domestic law. The second principle is that “the law must be adequately accessible”, a person must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to his case. The third principle is that “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable a person to regulate his conduct; he must be able ‑ if need be with appropriate advice ‑ to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail” (see the Silver and Others v. the United Kingdom judgment cited above, §§ 86-88).", "39. The Court recalls 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. In determining whether an interference is \"necessary in a democratic society\" regard may be had to the State’s margin of appreciation (see, amongst other authorities, Campbell v. United Kingdom judgment, cited above, § 44). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention. It has also been recognised that some measure of control over prisoners’ correspondence is called for and is not of itself incompatible with the Convention, regard being paid to the ordinary and reasonable requirements of imprisonment (see Silver and others v. the United Kingdom, judgment cited above, § 98).", "In assessing the permissible extent of such control in general, the fact that the opportunity to write and to receive letters is sometimes the prisoner’s only link with the outside world should not, however, be overlooked. (b) Application of the above principles to the instant case (i) The applicant’s correspondence with the Constitutional Court 40. It is not in dispute that the censorship of the Constitutional Court’s letter to the applicant constituted an “interference” with the applicant’s right to respect for his correspondence under Article 8 (see paragraphs 33 and 34 above). The Court sees no reason to hold otherwise. 41.", "The Court also notes that the Government admitted that the domestic authorities had acted contrary to the statutory prohibition laid down in Article 102 (11) of the 1997 Code. They maintained that under Article 102 (11) read in conjunction with Article 214 of the 1997 Code the applicant’s correspondence with the Constitutional Court, being a State authority, should not have been subjected to censorship (see paragraph 34 above). The Court concludes that, as acknowledged by the Government, the disputed measure was contrary to national law. 42. Since the authorities acted against the legal prohibition, the interference with the applicant’s correspondence was not “in accordance with the law”, as required by Article 8 of the Convention.", "For that reason, there has been a breach of Article 8 of the Convention in this regard and the Court does not consider it necessary to examine whether the other conditions of paragraph 2 of that provision were complied with. (ii) The applicant’s correspondence with the Court’s Registry 43. The Court observes that the parties appeared to agree that the measures applied to the applicant’s correspondence with the Court’s Registry constituted an interference with the applicant’s right to respect for his correspondence (see paragraphs 33 and 34 above). 44. The Court notes that the Government acknowledged that the authorities had acted contrary to the legal prohibition provided under the provisions of Article 103 read in conjunction with Article 214 of the 1997 Code (see paragraph 34 above).", "The Court sees no reason to disagree and holds that the interference was not “in accordance with the law”. Accordingly, the Court does not consider it necessary to ascertain whether the other requirements of paragraph 2 of Article 8 were complied with. Consequently, the Court concludes that there has been a violation of Article 8 of the Convention in this respect. (iii) The applicant’s correspondence with O.K. 45.", "The Court notes that it is a common ground that the censorship of the applicant’s correspondence with O.K. amounted to an “interference” with his right to respect for his correspondence under Article 8 (see paragraphs 33 and 35 above). The Court would underline that, in the Polish language, the world cenzurowano means that a competent authority, after having acquainted itself with the content of a particular communication, decides to allow its delivery or dispatch. It follows that the opening and reading of the letters amounted to an “interference” within the meaning of Article 8. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims.", "46. Having regard to the provisions of Articles 217 § 1 of the 6 June 1997 Code the Court accepts that was a legal basis for the opening and reading of the letters in question (see paragraphs 24 and 35 above). The Court recalls that in a number of its previous judgments – for instance, those in the cases of Matwiejczuk v. Poland (no. 37641/97, judgment of 2 December 2003, § 101) and of Mianowski v. Poland (no. 42083/98, judgment of 16 December 2003, § 65) – it has already dealt with the question whether Polish law as it stood at the material time indicated with the reasonable clarity the scope and manner of control of prisoners’ correspondence.", "The Court has found that the applicable provisions of Polish law were adequately accessible. Furthermore, bearing in mind the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity, it has accepted that the provisions were formulated with sufficient precision. The Court sees no reason to come to a different conclusion in this case. 47. The Court agrees with the Government’s opinion that the interference took place in “the interests of public safety” and pursued the legitimate aim of “the prevention of crime” (see paragraph 35 above).", "48. The Court will further assess whether the reasons adduced to justify the control in question were relevant and sufficient and whether the principle of proportionality has been adhered to. The Court considers that the censorship pursued a legitimate aim under Article 8 § 2 of the Convention, namely the prevention of crime. In the circumstances of the instant case, having regard to the fact that the applicant was indicted on charges of serious criminal offences and the need to secure the proper conduct of the trial, the interference could reasonably be considered as necessary in a democratic society. The relevant authorities were entitled, within the margin of appreciation left to them under Article 8 § 2, to think that the control of these particular letters was necessary “for the prevention of disorder or crime”.", "Accordingly, the interference was justified. 49. The Court therefore considers that, in the particular circumstances of the case, the monitoring of the applicant’s correspondence with O.K. can be regarded as having been necessary in a democratic society within the meaning of Article 8 § 2 of the Convention. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention in this respect.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicant claimed 400,000 euros (EUR) in respect of non-pecuniary damage.", "52. The Government considered that amount was excessive. They asked the court to rule that the finding of a violation of Article 8 would constitute in itself sufficient just satisfaction. In the alternative, they invited the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances, in particular the purchasing power of the national currency. 53.", "The Court considers that in the particular circumstances of the case, the finding of a violation would not constitute sufficient just satisfaction for non-pecuniary damage sustained by the applicant. Having regard to the extent of violation found, the Court awards the applicant EUR 1,000 under this head. B. Costs and expenses 54. The applicant did not seek to be reimbursed for any costs or expenses in connection with the proceedings before the Court.", "C. Default interest 55. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the remainder of the application admissible; 2. Holds that there has been a violation of Article 8 of the Convention in respect of the monitoring of the applicant’s correspondence with his defence counsel, the Constitutional Court and the European Court of Human Rights; 3.", "Holds that there has been no violation of Article 8 in respect of the monitoring of the applicant’s correspondence with O.K. ; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 May 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "FIFTH SECTION CASE OF PETA DEUTSCHLAND v. GERMANY (Application no. 43481/09) JUDGMENT STRASBOURG 8 November 2012 FINAL 18/03/2013 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of PETA Deutschland v. Germany, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President,Mark Villiger,Karel Jungwiert,Boštjan M. Zupančič,Ann Power-Forde,Angelika Nußberger,André Potocki, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 18 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "43481/09) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by PETA Deutschland (“the applicant”), an association based in Germany, on 12 August 2009. 2. The applicant association was represented by Mr K. Leondarakis, a lawyer practising in Göttingen. The German Government (“the Government”) were represented by their Agent, Mr H.-J. Behrens, of the Federal Ministry of Justice.", "3. The applicant association complained, in particular, about a violation of its right to freedom of expression. 4. On 14 November 2011 the application was communicated to the Government. 5.", "The parties replied in writing to each other’s observations. In addition, third-party comments were received from Mr S. Korn and the Central Council of Jews in Germany, both represented by Mr N. Venn, counsel, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant association is the German branch of the animal rights organisation PETA (People for the Ethical Treatment of Animals).", "It pursues, inter alia, the aims of preventing animal suffering and of encouraging the public to abstain from using animal products. 7. In March 2004 the applicant association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”.", "Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”. 8. In March 2004, three individual persons, P.S., C. K. and S. Korn, filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form.", "The plaintiffs were at the time the president and the two vice-presidents of the Central Jewish Council in Germany. All of them had survived the Holocaust when they were children; C.K. lost her family through the Holocaust. They submitted that the intended campaign was offensive and violated their human dignity as well as the personality rights of C. K.’s dead family members. 9.", "On 18 March 2004 the Berlin Regional Court granted the injunction. By judgment of 22 April 2004, that same court confirmed the interim injunction. The court considered that the plaintiffs had a claim to be granted injunctive relief under section 823 §§ 1 and 2 in conjunction with section 1004 of the Civil Code, sections 185 et seq. of the Criminal Code and Article 1 §§ 1 and 2 of the German Basic Law (see relevant domestic law, below). According to the Regional Court, the plaintiffs were concerned by the impugned statements in their capacity as former victims of the Holocaust.", "10. The Regional Court further considered that the impugned representations constituted expressions of opinion and were thus protected under Article 5 of the Basic Law. This right protected expressions of opinion even if they were formulated in a polemic or offensive way. The depictions were particularly disturbing and drew a high degree of media attention because the pictures combined on the posters showed seemingly similar situations, which could only be discerned by the fact that one side showed coloured photographs of animals and the other black-and-white photos of humans, both alive and dead. Seen from the point of view of an ordinary spectator, the impugned posters had to be interpreted as putting the fate of the depicted animals and of the depicted humans on the same level.", "11. There was no indication that the applicant association’s primary aim was to debase the victims of the Holocaust, as the posters obviously intended to criticise the conditions under which animals were kept and to encourage the spectator to reflect upon these conditions. It followed that the expression of opinion related to questions of public interest and would thus generally enjoy a higher degree of protection when weighing the competing interests. However, in the instant case it had to be taken into account that concentration camp inmates and Holocaust victims had been put on the same level as animals. In the light of the image of man conveyed by the Basic Law, which put human dignity in its centre and only marginally referred to the protection of animals, this comparison appeared arbitrary because the Holocaust victims were confronted with their suffering and their fate of persecution in the interest of animal protection.", "The debasement of concentration camp inmates was thus exploited in order to militate for better accommodation of laying hens and other animals. 12. The Regional Court finally considered that the decision of the instant case did not depend on a weighing of competing interests, as the expression of opinion violated the plaintiffs’ human dignity. The comparison offended the plaintiffs in their capacity as Holocaust victims by violating the respect for their human dignity. This violation was aggravated by the fact that the depicted persons were shown in a most vulnerable state.", "13. On 27 August 2004 the Berlin Court of Appeal rejected the applicant’s appeal. 14. On 2 December 2004 the Berlin Regional Court, in the main proceedings, confirmed its injunction. Further to the reasons given in the interim proceedings, the Regional Court considered that it was not its task to determine from a philosophical or ethical point of view whether the suffering of highly developed animals could be compared to human suffering, as the Basic Law put human dignity in its centre.", "15. On 25 November 2005 the Berlin Court of Appeal rejected the applicant’s appeal. 16. On 20 February 2009 the Federal Constitutional Court rejected the applicant’s constitutional complaint. The Federal Constitutional Court considered that the interpretation of the impugned pictures given by the civil courts was coherent and met the requirements imposed by the right to freedom of expression.", "17. The Federal Constitutional Court expressed its doubts as to whether the intended campaign violated the human dignity of either the depicted persons or the plaintiffs. There was no doubt that the photographs depicted Holocaust victims in situations in which they were highly degraded by their torturers. However, this did not necessarily imply that the use of these pictures also amounted to a violation of the represented persons’ human dignity. Having regard to the specific circumstances of the instant case, the court considered that the intended campaign did not deny the depicted Holocaust victims their personal value by putting them on a par with animals.", "Even though the applicant association might generally be convinced of the equality of human and animal suffering, the intended campaign did not pursue the aim to debase, as the pictures merely implied that the suffering inflicted upon the depicted humans and animals was equal. 18. However, the Federal Constitutional Court did not find it necessary to decide whether the intended campaign violated the plaintiffs’ human dignity, as the impugned decisions contained sufficient arguments which justified the injunction without reference to a violation of the plaintiff’s human dignity. It was, in particular, acceptable that the domestic courts based their decisions on the assumption that the Basic Law drew a clear distinction between human life and dignity on one side and the interests of animal protection on the other and that the campaign was banalising the fate of the victims of the Holocaust. It was, furthermore, acceptable to conclude that this content of the campaign affected the plaintiffs’ personality rights.", "Referring to its earlier case law, the Federal Constitutional Court considered that it was part of the self-image of the Jews living in Germany that they belonged to a group which had been sampled out by their fate and that a special moral obligation was owed to them by all others, which formed part of their dignity. 19. The Federal Constitutional Court did not find it necessary to remit the case for re-examination to the lower courts, as there was no indication that the lower courts would come to a different conclusion in case of a remittal. When weighing the competing interests, the plaintiffs’ legal position could be granted preference over the applicant association’s right to freedom of expression even without relying on a violation of the plaintiffs’ human dignity. The lower courts had put forward sufficient reasons to allow this conclusion.", "In particular, the courts had begun to weigh the competing interests. Furthermore, they had based their assumption that the impugned campaign violated the plaintiffs’ human dignity on the fact that they considered the violation of the plaintiff’s personal honour as particularly serious. As these considerations applied in a similar way to a violation of the plaintiffs’ personality rights, it had to be assumed that these principles would also guide the courts in case of a remittal. II. RELEVANT DOMESTIC LAW 20.", "The relevant provisions of the German Basic Law read as follows: Article 1 “(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” Article 5 “(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.", "(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.” Article 20a Protection of the natural foundations of life and animals “Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” 21. The relevant provisions of the German Civil Code read as follows: Section 823 “(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person, is liable to make compensation to the other party for the damage arising from this. (2) The same duty is held by a person who commits a breach of a statute that is intended to protect another person ...” Section 1004 “(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.” Section 185 of the Criminal Code reads as follows: “Insult shall be punished with imprisonment for not more than one year or a fine ...” According to the constant case-law of the German civil courts, section 823 §§ 1 and 2 in conjunction with section 1004 (in analogous application) of the Civil Code and section 185 of the Criminal Code grants any person whose personality rights concretely risk being violated by another person a claim to compel that other person to refrain from performing the impugned action. III.", "LEGAL POSITION OF THE AUSTRIAN SUPREME COURT 22. In March 2004 the applicant association organised an exhibition in Vienna, where the same posters which form the subject matter of the instant proceedings were publicly displayed. A number of Austrian citizens of Jewish origin, who had allegedly survived the Holocaust and who were not identical with the plaintiffs in the proceedings before the German courts, filed a request with the Austrian Courts to be granted an injunction ordering the applicant association to desist from publishing the seven specified posters. 23. On 12 October 2006 the Austrian Supreme Court (no.", "6 Ob 321/04f) rejected the request. That court expressed its doubts as to whether the plaintiffs were directly affected by the impugned poster campaign. It considered, in any event, that the impugned campaign was justified by the right to freedom of expression. The poster campaign did not debase the depicted concentration camp inmates. The court further considered that the poster campaign, besides addressing an important subject of general interest, had the positive effect of rekindling the memory of the national-socialist genocide.", "The concentration camp pictures documented the historic truth and recalled unfathomable crimes, which could bee seen as a positive contribution to the process of dealing with the past (Vergangenheitsaufarbeitung). The plaintiffs had only been affected to a limited degree by way of a collective insult. Conversely, the applicant association had a legitimate interest in publicly addressing its subject even in a drastic way. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 24.", "The applicant association complained that the civil injunctions violated its right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2.", "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 25. The Government contested that argument. A. Admissibility 26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (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 applicant association’s submissions 27. The applicant association submitted, in particular, that the impugned decision was based on a wrong assessment of the facts.", "It was not true that the impugned posters equalised the pictures of the Holocaust and the pictures of intensive mass animal farming, they merely showed disturbing similarities of the treatment of Holocaust victims and animals. Even if one should assume that the representations postulated equality between the depicted humans and animals, this was not suited to debase the depicted Holocaust victims. According to the applicant association’s conviction, which was increasingly shared within society, animals had to be regarded as equal fellow creatures. 28. The poster campaign was in no way intended to debase or insult the persons represented on the posters and did not violate any of the plaintiffs’ rights.", "It was neither trivialising the suffering, nor did it have any anti-Semitic background. The applicant association pointed out that the posters did not depict the applicants and that it was not even certain that all the persons depicted on the photographs were of Jewish Faith. Many persons of Jewish origin would not consider that such a comparison would violate their personality rights and had even made such comparisons in their own publications or had participated in the original planning of the campaign. Holocaust comparisons were not unlawful and had been widely used in public debate. The Supreme Court of Austria, in its decision given on 12 October 2006 (see paragraph 23, above) had rejected a request for granting a civil injunction against the publication of the impugned posters in Austria.", "29. The applicant association did not contest that the legal prerequisites for granting a civil injunction were laid down in the law as defined in the established case-law of the German courts. However, these prerequisites had not been met in the instant case. In particular, it had not been foreseeable for the applicant association that the publication of the impugned depictions would, in the domestic courts’ view, violate the personality rights of the Jews living in Germany. Contrary to the Government’s submissions, the question of whether the plaintiffs were concerned in this case was not clearly evaluated under German law.", "The case law quoted by the Government exclusively referred to the denial of the Holocaust, and was thus not applicable in the instant case. The decisions in this respect were devoid of any legal basis and had thus to be considered as being arbitrary. 30. The applicant association further submitted that the interference with their Convention rights had not been necessary in a democratic society. The domestic courts had failed to consider that, under the Court’s case-law, freedom of expression constituted one of the essential foundations of a democratic society and that a special degree of protection was afforded to expressions of opinions which were made in the course of a debate on matters of public interest.", "The applicant association accepted that the historical background in Germany made it necessary to apply specific criteria enabling every person of Jewish origin to take steps against anti-Semitic discrimination. However, this approach was taken too far if every depiction of a person of Jewish origin was automatically considered collective insult. 31. The applicant association considered that it was thus not even necessary to strike a balance between any competing interests. Even if such a balance was to be struck, the applicant association’s right to freedom of expression had to take precedence.", "The German courts had failed to weigh the competing interests, having particular regard to the fact that the applicant association pursued objectives of the highest ethical and moral standards, as was further supported by the fact that the protection of animal rights was expressly mentioned in Article 20 a of the German Basic Law. Due to sensory overload through commercials and advertisements, the applicant association was dependent on gaining attention for its cause in drastic ways. It thus did not matter that the applicant association would have had other means at its disposal to express its opinion. 2. The Government’s submissions 32.", "The Government considered that the civil injunction was justified under Article 10 § 2 of the Convention. The German courts had struck a fair balance between the applicant association’s right to freedom of expression and the personality rights of the plaintiffs in the instant proceedings, thus staying within their margin of appreciation. 33. The interference with the applicant association’s right to freedom of expression had been in accordance with the law and necessary in a democratic society in order to protect the plaintiffs’ personality rights. The legal prerequisites for a civil injunction were clearly defined by the established domestic case-law.", "Under these provisions, it was irrelevant if the applicant association had the intention of violating the plaintiffs’ personality rights. 34. The civil injunction pursued the legitimate aim of protecting the plaintiffs’ personality rights and was necessary in a democratic society for the protection of those rights. The domestic courts had carefully weighed the conflicting interests, thereby taking into account the importance of the right to freedom of expression in a democratic society. 35.", "In contrast to the legal situation in Austria, there was no doubt under German law that the plaintiffs, in their capacity as Jews living in Germany, were entitled to rely on their own personality rights in the instant case. In its judgment of 18 September 1979 (no. VI ZR 140/78), which concerned the denial of the Holocaust, the Federal Court of Justice established that all persons of Jewish origin had the right to rely on their own personality rights, irrespective of the question if they had been born after the end of National Socialism and if all their ancestors were of Jewish descent. The Federal Constitutional Court had correctly applied these principles in the instant case. 36.", "The Government considered that they should be granted a wide margin of appreciation allowing a generous definition of the group of affected persons. This applied, in particular, in light of Germany’s history, which meant that it was hardly conceivable that a German court would reach a similar conclusion as the Austrian Supreme Court (compare paragraph 23, above). Given its historical responsibility, it was Germany’s duty to ensure that violations of personality rights could be claimed in connection with the Holocaust. The individuals depicted on the photographs were, almost without exception, unable to do this themselves. 37.", "It followed that it had to be assumed under the Convention that there was a sufficient direct connection between the applicant’s poster campaign and the plaintiffs’ personality rights. It was therefore irrelevant whether the individuals depicted on the photographs or their descendants would have wished the issue of the civil injunction. The attack on the personality rights did not consist in the depiction of specific persons in the photographs, but rather in the applicant’s use of concentration camp photographs for their campaign. It was, furthermore, irrelevant if all of the persons depicted were of Jewish faith, as the Holocaust aimed to destroy all Jews living in Europe and the overwhelming majority of the victims during this period were of Jewish origin. 38.", "According to the Government, the domestic courts had given extensive and relevant reasons for letting the plaintiffs’ personality rights prevail over the applicant’s right to freedom of expression. They had, in particular, taken into account that the applicant association intended to express itself on a subject of public interest and that it did neither intend to debase the victims of the Holocaust nor to banalise their suffering. On the other hand, the domestic courts had taken into account the gravity of the violation of the plaintiffs’ personality rights. Furthermore, it had to be considered that the sanction imposed on the applicant association had not been very severe and that the applicant association had numerous other possibilities to express their protest against mass animal farming. 3.", "The third parties’ submissions 39. The third parties submitted that the intended poster campaign directly violated the rights of Mr S. Korn in his capacity as a Jew living in Germany and the Jews living in Germany, who were, by a majority, represented by the Central Council of Jews in Germany. They emphasised that it was accepted in the established case-law of the Federal Court of Justice and of the Federal Constitutional Court that the Jews living in Germany regarded themselves as a group singled out by fate, towards whom all others had a particular moral responsibility. Consequently, a denial or trivialisation of the genocide of Jews in the Third Reich violated the right of each member of this group. The direct violation of the rights of all Jews living in Germany was also recognised in simple legal standards and on a European level.", "40. The direct effect on the Jews living in Germany was not dependent on the identification of the depicted Holocaust victims. There could be no serious doubt that such pictures were a symbol of the systematic persecution and murder of the Jews in Europe. Each one of the more than 100,000 Jews represented by the Central Council of Jews would affirm a violation of their personal rights. It became clear from the applicant association’s submissions that they were not aware of the sensitivity of the subject matter.", "41. In the eyes of a rational and unbiased public, the photographs combined with the accompanying texts allowed the only possible conclusion that the suffering of the depicted animals counted just as much as the suffering of the people pictured next to them. It did not matter in this context whether the applicant association intended to violate the personal rights and human dignity of the Jews living in Germany. 4. Assessment by the Court 42.", "The Court notes that it is common ground between the parties that the impugned measure constituted an “interference by [a] public authority” with the applicant’s right to freedom of expression as guaranteed under Article 10 of the Convention. The Court endorses this assessment. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It therefore falls to be determined whether the interference was “prescribed by law”, had an aim or aims that is or are legitimate under Article 10 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims. 43.", "The Court notes that the interference had a legal basis in section 823 §§ 1 and 2 in conjunction with section 1004 of the Civil Code, and section 185 of the Criminal Code (compare paragraph 21, above). The Court observes that the applicant association did not contest that these provisions, under the established domestic case-law, grant any person whose personality rights risk being violated by another person a claim to compel that other person to refrain from performing the impugned action. There is no doubt that the relevant texts were accessible to the applicant association. As to the question of whether the domestic courts correctly applied these provisions, the Court reiterates that the application and the interpretation of the domestic law primarily fall within the competency of the domestic authorities which are, in the nature of things, particularly well placed to settle the issues arising in this connection (compare inter alia Barthold v. Germany, 25 March 1985, § 48, Series A no. 90).", "The Court observes that the applicant association’s argument primarily evince its disagreement with the domestic courts’ decisions. Accordingly, the Court is satisfied that the injunction complained of was “prescribed by law”. 44. The Court is further satisfied that the interference pursued the legitimate aim of protecting the plaintiffs’ personality rights and thus “the reputation or rights of others”. 45.", "It thus remains to be determined whether the interference was “necessary in a democratic society”. In the judgment of Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99 ECHR 2004‑XI, the Court summarised the general principles in its case law as follows: “68. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.", "The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). 69. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no.", "29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 52, ECHR 2000-I). 70. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no.", "64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, judgment of 25 November 1997, Reports 1997-VII, pp. 2547-48, § 51).” 46. The Court recalls that the domestic authorities have a variety of tools at their disposal allowing them to strike a fair balance between the various interests at stake. In assessing the proportionality of the measure at issue they have, beyond the complete prohibition or authorisation of the expression of an opinion, in particular the option of setting specific limits to the authorisation or to the prohibition.", "Moreover, freedom of expression is applicable to not only “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. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Axel Springer AG v. Germany [GC], no. 39954/08, § 78, 7 February 2012, with further references). Furthermore, 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, among other authorities, Ceylan v. Turkey [GC], no. 23556/94, § 33, ECHR 1999‑IV; Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no.", "2) [GC], no. 32772/02, § 92, ECHR 2009 and Mouvement raëlien v. Switzerland [GC], no. 16354/06, § 61, 13 July 2012). 47. Turning to the circumstances of the instant case, the Court observes, at the outset, that the applicant association’s intended poster campaign concerned battery animal-farming.", "Accordingly, as it related to animal and environmental protection, it was undeniably in the public interest (compare Verein gegen Tierfabriken Schweiz, ibid.). It follows that only weighty reasons can justify the interference with the applicant’s right to freedom of expression in this context. The Court further observes that the domestic courts adjudicating the applicant’s case carefully examined whether the issue of the requested civil injunction would violate the applicant association’s right to freedom of expression. In doing so, the domestic courts applied the standards developed by the Court as set out above. They expressly accepted that the impugned representations constituted expressions of opinion and where thus protected under the right to freedom of expression.", "They further acknowledged that this right protected expressions even if they were formulated in a polemic or offensive way (compare paragraph 10, above) and that the impugned posters related to questions of public interest, as they were obviously intended to criticise the conditions under which animals were kept (compare paragraph 11, above). 48. The Court further observes that the domestic courts considered that the intended poster campaign did not pursue the aim to debase the depicted concentration camp inmates, as the pictures merely implied that the suffering inflicted upon the depicted humans and animals was equal. The domestic courts considered, however, that the applicant association confronted the plaintiffs with their suffering and their fate of persecution in the interest of animal protection. It was this “instrumentalisation” of the plaintiffs’ suffering that violated their personality rights in their capacity as Jews living in Germany and as survivors of the Holocaust.", "This violation was aggravated by the fact that the depicted Holocaust victims were shown in a most vulnerable state. Having regard to the seriousness of this violation, the courts considered that the applicant association’s interests in publishing the impugned pictures had to cede. While expressing its doubts as to whether the intended campaign violated the human dignity of either the depicted persons or the plaintiffs, the Federal Constitutional Court endorsed the lower courts’ assessment that the campaign banalised the fate of the Holocaust victims and that the violation of the plaintiffs’ personal honour was particularly serious. 49. The Court considers that the facts of this case cannot be detached from the historical and social context in which the expression of opinion takes place (compare Hoffer and Annen, cited above, § 48 and Rekvényi v. Hungary [GC], no.", "25390/94, §§ 46 et seq., ECHR 1999‑III). It observes that a reference to the Holocaust must also be seen in the specific context of the German past (see Hoffer and Annen, ibid.) and respects the Government’s stance that they deem themselves under a special obligation towards the Jews living in Germany (compare paragraph 36, above). In the light of this, the Court considers that the domestic courts gave relevant and sufficient reasons for granting the civil injunction against the publication of the posters. This is not called into question by the fact that courts in other jurisdictions might address similar issues in a different way (also compare Müller v. Switzerland, 24 May 1988, § 36 , Series A no.", "133). 50. The Court further recalls that the nature and severity of any sanction imposed are also factors to be taken into account when assessing the proportionality of the interference (see, among other authorities, Ceylan, cited above, § 37 and Annen II v. Germany (dec.), nos. 2373/07 and 2396/07, 30 March 2010). Turning to the circumstances of the instant case, the Court notes that the proceedings at issue did not concern any criminal sanctions, but a civil injunction preventing the applicant association from publishing seven specified posters.", "The Court finally observes that the applicant has not established that it did not have other means at their disposal of drawing public attention to the issue of animal protection. 51. Having regard to the foregoing considerations and, in particular, to the careful examination of the case by the domestic courts, the Court accepts that the civil injunctions issued against the applicant association were a proportionate means to protect the plaintiffs’ personality rights. There has accordingly been no violation of Article 10 of the Convention. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 52. The applicant association further complained under Article 6 § 1 of the Convention that the domestic courts arbitrarily based their judgments on a false assessment of the facts and failed to take into account relevant case law of the Federal Constitutional Court. It finally complained under Article 14 of the Convention that it was stigmatised as being anti-Semitic. 53. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 10 of the Convention admissible and the remainder of the application inadmissible; 2. Holds that there has been no violation of Article 10 of the Convention. Done in English, and notified in writing on 8 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekDean SpielmannRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Zupancic joined by Judge Spielmann is annexed to this judgment. D.S.C.W. CONCURRING OPINION OF JUDGE ZUPANČIČ, JOINED BY JUDGE SPIELMANN 1. We agree, obviously, with the outcome in this case. We beg to differ, however, with the reasoning of the majority such as essentially implied in § 49 of the judgment, where it says “that the impact of an expression of an opinion [...] on another person’s personality rights cannot be detached from the historical and social context in which the statement has been made and that a reference to the Holocaust must also be seen in the specific context of the German past.” (Citing Hoffer and Annen, § 48).", "2. This, of course, is very true, yet it also implies the Court might agree to the impunity of an applicant’s behaviour in a jurisdiction where the “historical and social context” is purportedly different. 3. Apart from that, the real question here is the relativisation of an unacceptable use of the freedom of expression. This relativisation is only a shade removed, if one considers mere appearances, from a Nazi kind of discriminatory pronouncement.", "One need only imagine that the poster was made from the opposite point of view; then one easily arrives at a converse impression that the inmates shown behind the barbed wire are to be compared with the pigs behind the bars. If such is the kind of statement covered by freedom of expression, one then finds it difficult to understand, what is not covered by freedom of expression. 4. The above relativisation is deeply problematic from a seemingly “democratic” point of view, where everything goes because everything is relative and everything is, to put it metaphorically, for sale. People only have opinions, but they lack convictions, let alone the courage of their convictions.", "The difference between good and evil, between what is right and what is clearly wrong is thus a matter of opinion, as if reasonable men could reasonably differ on a particular subject matter. 5. Here we may pause and ask, whether reasonable men could indeed or could not differ on the utterly distasteful and unacceptable comparison between pigs on the one hand and the inmates of Auschwitz or some other concentration camp, on the other hand. A few decades ago this kind of Denkexperiment, even in the American context, would only yield a result unfavourable to the applicants, because a few decades ago, reasonable persons could not possibly differ on the question we have before us in this case. 6.", "Apparently, things have changed to the extent that indeed both the Federal Constitutional Court in Germany, as well as our Court, are still able to say that such comparison is unacceptable, but only in the context of a country carrying a historical stigma concerning the concentration camps. 7. The Federal Constitutional Court, as we say in paragraph 48, endorsed the lower German courts’ assessment to the effect that the campaign made banal the fate of the Holocaust victims and that the violation of the plaintiffs’ personal honour was particularly serious. We, on the other hand, seem to be even more “flexible” and we only maintain that the personality rights (Persönlichkeitsrechte) cannot be detached from the social context in which the poster statement has been made and moreover, that the reference to the Holocaust must also be seen in the specific context of the German past. 8.", "Quite apart from the fact that the German Federal Constitutional Court did not consider the issue under the constitutional norm concerning dignity, this was explained by technical reasons; there is a noticeable difference between the two positions. Thus, it is difficult to say whether that court, if such an attack were to occur; would indeed find it incompatible with human dignity. Personally, we have no doubts that it would. 9. If that were to be true, the position taken by the domestic constitutional court would be far more than ours a question of principle, i.e., the decision would not be taken in the German domestic context as a matter of cultural relativisation.", "On the other hand, the unfortunate implication of our own position seems to be that the same kind of “freedom of expression” in the Austrian cultural context would clearly be acceptable – let alone in other countries ranging from Azerbaijan in the east to Iceland in the west. 10. Moreover, since the judgment in this case, unless it goes to the Grand Chamber, will become a precedent, it will be de facto binding on all other countries, of course negatively – except on Germany. Because, what is unacceptable in Germany, is no longer unacceptable in Austria, with a similar historical concern, and a fortiori so in other countries. We do not believe that such an approach, were it to be reconsidered by the Grand Chamber, would be acceptable and confirmed.", "11. If we now return to the opening theme and consider the difference between the principled and the relativistic positions, as in this case, we may be reminded, although tangentially, of H. L. A. Hart’s distinction between prescriptive norms on the one hand and the instrumental norms on the other hand. 12. Because instrumental norms are relative to the prescriptive norm, they are in that sense relative, whereas the prescriptive norm is by counter distinction and juxtaposition, categorical and in that sense, absolute. 13.", "Here we are reminded of Immanuel Kant’s categorical imperative. His position was that every human being must be treated as an end in himself. This perhaps coincides with the German constitutional concept of dignity. 14. But when human beings in their utter suffering and indignity are, as here, compared to hens and pigs for the lesser purpose of protecting otherwise legitimate advancement of animal rights, we are no longer in the position to maintain that the human beings seen in these pictures are treated as an end in themselves.", "15. Clearly, these human beings, not only Jewish but of all nationalities, in a concentration camp, are here treated as an instrument for the advancement of animal rights. If their image is so instrumentalised, little is left of their human dignity, I’m certain, even in the context of German constitutional law. 16. Hart’s distinction between prescriptive norms on the one hand and instrumental norms on the other hand, is in fact an analogy to the distinction between Kant’s categorical imperative on the one hand and less categorical norms on the other hand.", "17. In simple legalistic language, the question is therefore, where do we draw the line? Would these pictures be acceptable in Azerbaijan or Iceland, or in Austria, or would they not be acceptable? 18. Indeed, this is a question of varying cultural standards, which may or may not be shared in any of the 47 different cultural contexts.", "In turn, the European Court of Human Rights is put in a position whereby it may or it may not relegate the issue to the so-called margins of appreciation. 19. According to that logic, what is acceptable in any other country may not be acceptable in Germany, etc. We see, that this is simply a different kind of relativisation of the same issue, i.e., of our own refusal to draw the line. If the line cannot be drawn here, one is entitled to ask where it would be drawn.", "It would be difficult to find anything more shocking, as Justice Frankfurter of the U.S. Supreme Court would have said, to human conscience." ]

[ "SECOND SECTION CASE OF METİN GÜLTEKİN AND OTHERS v. TURKEY (Application no. 17081/06) JUDGMENT STRASBOURG 6 October 2015 FINAL 01/02/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Metin Gültekin and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Paul Lemmens, President,Işıl Karakaş,Nebojša Vučinić,Helen Keller,Ksenija Turković,Egidijus Kūris,Robert Spano, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 15 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17081/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Turkish nationals, Mr Metin Gültekin, Mrs Gülten Gültekin, Mr Tanju Gültekin, and Ms Selma Karaduman (“the applicants”), on 1 April 2006. 2. The applicants were represented by Ms Nuran Özdemir, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3.", "Relying on Article 2 of the Convention, the applicants alleged, in particular, that their close relative, Toğay Gültekin, had died while doing his compulsory military service owing to the authorities’ failure to ensure prompt access to medical treatment for his serious health problems. 4. On 2 April 2014 the application was communicated to the Government. THE FACTS 5. The applicants were born in 1960, 1963, 1988 and 1986 respectively and live in Zonguldak.", "The first two applicants are the parents, the third applicant is the brother and the fourth applicant is the fiancée of Mr Toğay Gültekin. A. The incident 6. Toğay Gültekin was born in 1983 and started doing his compulsory military service on 22 August 2003 in the city of Kırklareli. At that time he had no known health problems.", "7. On 17 March 2004 Toğay Gültekin was examined by a doctor at his regiment and the doctor decided to refer him to a hospital specialising in infectious diseases. On 22 March 2004 a doctor who examined him at his regiment’s infirmary referred him to Trakya University Hospital (“The University Hospital”) for suspected hepatitis or meningoencephalitis. The following day Toğay Gültekin was sent to the hospital in Edirne where, after a number of examinations were conducted, he was diagnosed with fulminant hepatitis (acute liver failure). A decision was taken on 24 March 2004 to send him to the Haydarpaşa GATA Hospital in Istanbul for a liver transplant operation.", "On arrival at the hospital in Istanbul the same afternoon he was put in the intensive care unit. 8. At 5.15 p.m. on 27 March 2004 he died at the GATA Hospital. No autopsy was performed. B.", "The military investigation 9. An investigation was carried out at the military unit where Toğay Gültekin had been doing his military service. On 30 and 31 March 2004 a total of eleven military personnel who knew or had had dealings with Toğay Gültekin were questioned by their superiors. 10. The eleven military personnel all stated that Toğay Gültekin had spoken to his commanding officer on 16 February 2004 and told him that a friend of his had hepatitis and that he had suspected that he might also have contracted the same disease.", "His superior had then transferred him to the regiment’s infirmary where tests had been conducted, establishing that he did not have hepatitis. 11. One of the eleven military personnel was the doctor who had examined Toğay Gültekin in the regiment’s infirmary on 22 March 2004 (see paragraph 7 above). The doctor stated that on 22 March 2004 Toğay Gültekin had come to see him because he had been feeling unwell and the colour of his urine had been darker than usual. He had then sent Toğay Gültekin for a urine examination and when he had got the results back he had noticed a problem.", "The same day he had asked for Toğay Gültekin to be referred to the University Hospital. 12. The military officers who carried out the investigation concluded, on the basis of the statements referred to above, that the military authorities had acted in accordance with their duties when providing medical assistance to Toğay Gültekin and that there had been no fault attributable to them in his death. C. The compensation proceedings 13. On 28 September 2004 the applicants initiated compensation proceedings against the Ministry of Defence before the Supreme Military Administrative Court (“the Military Administrative Court”).", "They argued, in particular, that Toğay Gültekin had not received prompt or adequate medical care in his regiment. 14. The applicants submitted in their petition that, according to the official documents in their possession, Toğay Gültekin had been examined by a doctor attached to his regiment on 17 March 2004 and that the doctor had recommended his transfer to a hospital specialising in infectious diseases. Nevertheless, the military authorities had not followed that recommendation. When his condition had deteriorated he had been examined by another doctor at the regiment on 20 March 2004.", "However, that doctor had not sought to obtain blood or urine tests and had sent him back to his military unit. When Toğay Gültekin’s condition had deteriorated even further on 22 March 2004, he had been examined once again and this time a urine test had been carried out. The doctor who had evaluated the results of the test had considered that Toğay Gültekin might have hepatitis or meningoencephalitis and had asked for him to be referred to hospital. Nevertheless, Toğay Gültekin had still not been transferred to the hospital promptly and only the following day had he been put on a bus and sent to the hospital. The applicants argued that it had been these inordinate delays that had caused Toğay Gültekin’s death.", "They pointed out that Toğay Gültekin had been performing his military service and had thus not had the opportunity to leave his military unit and seek medical assistance of his own volition. Therefore, the authorities had been under an obligation to protect his well-being and to ensure timely medical treatment for him. 15. On 14 January 2005 the Ministry of Defence submitted its observations to the Military Administrative Court. Based on the testimonies of the soldiers from the same regiment (see paragraphs 9-11 above), it argued that on 16 February 2004 Toğay Gültekin had seen his superior and told his commanding officer that his friend had contracted hepatitis and that he suspected that he himself might have been infected as well.", "A blood test had been conducted, but the results had not revealed any abnormalities. 16. The Ministry of Defence alleged that Toğay Gültekin had not gone to the infirmary between 16 February 2004 and 20 March 2004, but accepted that he had been examined by a doctor at the regiment’s infirmary on 20 March 2004 and then sent back to his military unit. It maintained that the military authorities had not acted in a negligent fashion when dealing with Toğay Gültekin’s medical problems. 17.", "In their replies to the Ministry of Defence the applicants submitted that there was no evidence to show that a blood test had been carried out on 16 February 2004. They also referred to the medical reports and stated that it had been clearly indicated in the records that Toğay Gültekin had seen the doctor at the infirmary on 17 March 2004 and that his referral to an infectious diseases clinic had been decided by that doctor. 18. During the proceedings the Military Administrative Court appointed three medical experts, namely two professors and an associate professor from the infectious diseases department of the Gazi University Medical School, in order to clarify whether the military authorities had acted negligently. The medical experts reached the following conclusion in their report of 20 September 2005: “... An examination of the documents and other information in the file shows that Toğay Gültekin started his military service on 22 August 2003.", "On 2 January 2004 he was treated for a retractile testicle at Çorlu Military Hospital. On 5 January 2004 he was prescribed medication at the regiment’s infirmary for an upper respiratory tract infection. On 17 March 2004 the regimental infirmary doctor decided to refer him to the Çorlu Military Hospital’s infectious diseases department, but that was not done. On 20 March 2004 he was diagnosed with and treated for an infection of the upper respiratory tract. On 22 March 2004 he was referred to the University Hospital with suspected hepatitis and he was sent there.", "On 23 March 2004 he was diagnosed with fulminant hepatitis. On 24 March 2004 he was transferred to the GATA Research Hospital in Haydarpaşa where he died on 27 March 2004 as a result of fulminant hepatitis. Two of the causes of fulminant hepatitis are hepatitis A virus and hepatitis B virus. Hepatitis A may be contracted by drinking contaminated water and by eating raw vegetables and fruits. Hepatitis B spreads through sexual contact, or by coming into contact with infected blood by sharing personal items such as toothbrushes, razors, or needles.", "Military service, in itself, does not pose a special risk for hepatitis contamination. Having examined the medical reports in the file, we consider it very likely that the first symptoms regarding Toğay Gültekin’s disease became obvious on 20 March 2004 and his condition then deteriorated for one week until his death. The first symptoms of the liver disease (acute liver failure) which is caused by hepatitis A and hepatitis B viruses include tiredness and general complaints which are not specific to any of the organs. They can be similar to the symptoms of upper respiratory tract infection. Only after developing typical symptoms, such as jaundice, does it become easier to diagnose.", "The disease caused by these two viruses (hepatitis) can be more serious in adults. According to the medical reports in the file, Toğay Gültekin was contaminated with both hepatitis A and hepatitis B viruses within a short period of time and his liver was infected with both viruses at the same time. This is a condition which worsens the damage to the liver and increases the risk of fulminant hepatitis (fast-deteriorating acute liver failure). The mortality rate of fulminant hepatitis is 70% within the first week; a liver transplant is the sole method of ensuring patient survival. Normally, the patient would be kept in hospital under close observation.", "Having taken cognisance of the documents in the file, we have not established any delays, fault or negligence in the medical treatment provided to Toğay Gültekin at the infirmary of his regiment, at the University Hospital or at the GATA Hospital in Haydarpaşa.” 19. The applicants lodged an objection to this report. They maintained that the authorities had acted negligently as they had delayed Toğay Gültekin’s transfer to hospital. Referring to the medical reports in the file, the applicants stated that although the doctor at the regiment had decided to refer Toğay Gültekin to an infectious diseases clinic on 17 March 2004, the military authorities had failed to comply with the doctor’s decision until 23 March 2004. The applicants also asked the Military Administrative Court to obtain an additional medical expert report.", "20. On 26 October 2005 the Military Administrative Court dismissed the applicants’ claim. In its decision the court relied on the medical expert report summarised above (see paragraph 18), and concluded that no fault could be attributed to the authorities for Toğay Gültekin’s death. No mention was made in the decision of the applicants’ complaint regarding the failure to transfer Toğay Gültekin to hospital on 17 March 2004. 21.", "The applicants lodged a request for rectification of the Military Administrative Court’s decision and argued, inter alia, that if, as alleged, Toğay Gültekin had told his commanding officer on 16 February 2004 that he might have been infected with hepatitis (see paragraphs 9-11 above), his superior should have taken it seriously and referred him to hospital. However, there were no records showing that any action had been taken. They also pointed out that their complaints did not relate to the period following Toğay Gültekin’s transfer to the hospital, but to the authorities’ negligence in failing to refer Toğay Gültekin to hospital between 17 and 23 March 2004. 22. On 28 December 2005 the Military Administrative Court refused to entertain the rectification request lodged by the applicants.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 23. The applicants complained under Article 2 of the Convention that the delay in transferring Toğay Gültekin to the hospital from his regiment had delayed his access to appropriate treatment and had thus caused his death. They argued that, as Toğay Gültekin had been under the authority of the military administration during his compulsory military service, the State should be held responsible for his death which, they believed, had been caused as a result of the authorities’ negligence. The applicants also relied on Article 6 of the Convention and argued that the proceedings before the Supreme Administrative Military Court had not been conducted fairly.", "In this connection, they stated that their objection to the medical expert report had not been taken into account and that the Military Administrative Court had failed to interpret the facts of the case correctly and that no effective investigation had been carried out. 24. The Government contested the applicants’ arguments. 25. The Court considers it appropriate to examine the applicants’ complaints solely from the standpoint of Article 2 of the Convention which provides, in so far as relevant, as follows: “1.", "Everyone’s right to life shall be protected by law ...” A. Admissibility 26. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. The parties’ submissions 27. The applicants complained that Toğay Gültekin had died as a result of negligence by the military authorities. 28. The Government argued that after Toğay Gültekin had informed his commanding officer (on 16 February 2004) of the possibility that he might have contracted hepatitis (see paragraphs 9-11 above), he had undergone a blood test the very same day and that the results of that test had been negative.", "The Government submitted that, although the authorities had been unable to find and submit to the Court the blood test report, it had been recorded in the relevant logbooks that such a report had indeed been obtained that day. 29. From 20 March 2004 onwards Toğay Gültekin had received the required treatment and tests and had been referred to different hospitals depending on the stage of the disease. A medical expert investigation had been carried out within the scope of the compensation proceedings (see paragraph 18 above) and the medical experts had considered that the fact that Toğay Gültekin had not been referred to hospital on 17 March 2004 could not be regarded as a shortcoming. In the opinion of the Government, given that Toğay Gültekin had been examined some three days afterwards, that is on 20 March 2004, the three-day delay in transferring him to hospital had not amounted to a violation of the Convention.", "In this connection the Government also pointed to the finding that Toğay Gültekin had contracted two viruses at the same time and his disease had progressed rapidly as a result (see paragraph 18 above). 30. The Government submitted that no autopsy had been conducted as Toğay Gültekin had died in hospital. Furthermore, no requests had been made by the family for a judicial investigation to be opened into the death and the authorities had not done so of their own motion. An administrative investigation had, however, been conducted within the military unit (see paragraphs 9-12 above).", "The applicants had also been paid the sum of approximately 2,690 euros (EUR) by the Mehmetçik Foundation (a foundation set up to help families of servicemen who have died while on duty). 2. The Court’s assessment 31. The Court reiterates at the outset that Article 2 of the Convention enshrines one of the basic values of the democratic societies making up the Council of Europe (see McCann and Others v. the United Kingdom, 27 September 1995, § 47, Series A no. 324).", "The first sentence of Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III; and Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998‑VIII). 32. The Court has also had previous occasion to emphasise that persons deprived of their liberty, such as persons in custody, are in a vulnerable position and that the authorities are under a duty to protect them (see Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000‑VII).", "This duty to protect, when read in light of the positive obligation described in the preceding paragraph, extends to protecting the health and well-being of persons deprived of their liberties and implies an obligation for the authorities to provide such persons with the medical care necessary to safeguard their life. A sharp deterioration in a person’s state of health in detention facilities inevitably raises serious doubts as to the adequacy of medical treatment there. Thus, where a detainee dies as a result of a health problem, the State must offer a reasonable explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death (see Makharadze and Sikharulidze v. Georgia, no. 35254/07, §§ 71-72, 22 November 2011 and the cases cited therein). 33.", "Noting the salient parallels between the situation of persons in custody and conscripts doing their compulsory service, the Court has held that conscripts are also entirely in the hands of the State and that the Contracting Parties bear the burden of providing a plausible explanation for any injuries and deaths occurring in the army (see Beker v. Turkey, no. 27866/03, §§ 41-43, 24 March 2009). 34. The Court will examine the applicants’ complaints in the present case in light of the principles set out above. To that end, the Court observes that the applicants’ relative Toğay Gültekin started his military service on 22 August 2003 and was in the course of doing so when his health problems began in March 2004.", "It is not disputed that while he was performing his military service he was not able to leave his regiment in order to procure medical treatment from a medical establishment of his own choice. 35. At this juncture the Court deems it important to stress that in their application before the Court the applicants do not complain that Toğay Gültekin contracted hepatitis as a result of an action or omission attributable to the military authorities. Neither do they allege that the medical treatment provided to Toğay Gültekin after his hospitalisation on 23 March 2004 was unsatisfactory or inadequate. Their complaint relates solely to the military authorities’ failure to send him to hospital on 17 March 2004, contrary to the decision of the doctor who examined him that day, and their subsequent and repeated failures to take Toğay Gültekin to hospital until 23 March 2004.", "The applicants allege that those delays caused Toğay Gültekin’s death. The Court’s examination will therefore be limited to that specific complaint. 36. To that end, the Court considers that it is not its duty to establish whether or not the seven-day delay caused Toğay Gültekin’s death. Indeed, it is not the Court’s task to rule on matters lying exclusively within medical specialists’ field of expertise (see Kozhokar v. Russia, no.", "33099/08, § 108, 16 December 2010). Establishing whether or not the delays had a bearing on the death was the duty of the national authorities who, as explained above (see paragraph 33), bore the burden of providing a plausible explanation for the death of a soldier under their exclusive control. The Court will therefore establish whether the respondent State has discharged that duty by showing that the delays in question did not have a direct bearing on the death and that the national authorities did everything which could reasonably have been expected of them under the circumstances to protect Toğay Gültekin’s life (see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 167, 14 March 2013). 37.", "In order to establish whether the respondent Government have satisfactorily discharged their burden of showing that they complied with their positive obligation to provide Toğay Gültekin with prompt and adequate medical treatment for his problem, the Court will have regard to the documents in its possession and the steps taken during the military investigation. 38. The Court notes that the applicants initiated compensation proceedings before the Military Administrative Court. In theory, at least, at the end of those proceedings the applicants could have obtained an assessment of whether or not the military authorities had acted negligently and received compensation for the damage they had suffered. This remedy was therefore appropriate in the present case and in examining the applicants’ allegations the Court will also have regard to the manner in which the compensation proceedings were conducted.", "39. The Court observes at the outset that hepatitis is a potentially lethal disease which requires specialist treatment. According to the three medical school professors whose opinions were sought by the national courts when examining the applicants’ claim for compensation, the mortality rate in fulminant hepatitis is 70% within the first week (see paragraph 18 above). 40. Moreover, the Court observes that the military authorities were given ample indications that Toğay Gültekin might have contracted hepatitis, and considers that they knew or ought to have known of the real risks to his life (see Keenan v. the United Kingdom, no.", "27229/95, § 90, ECHR 2001‑III). The Court would highlight, in this connection, that according to the information given by the eleven military personnel, Toğay Gültekin had informed his commanding officer on 16 February 2004 of his suspicion that he might have contracted hepatitis (see paragraphs 9-11 above). Furthermore, the Court recalls that the military doctor who examined Toğay Gültekin on 17 March 2004 in the regiment’s infirmary decided to refer him to a hospital specialising in infectious diseases. 41. Nevertheless, although the military authorities were thus aware of Toğay Gültekin’s health problems and should have taken measures within the scope of their powers which, judged reasonably, might have been expected to protect his health (ibid.", "), they failed to do so. Importantly, although the doctor who examined Toğay Gültekin on 17 March 2004 showed diligence by deciding to refer him to hospital, his decision was not acted upon by the military authorities. 42. The Court notes that the failure to take Toğay Gültekin to the hospital on 17 March 2004 and the allegation that that delay cost him his life were the central and crucial points of the case brought by the applicants against the Ministry of Defence. However, notwithstanding the existence of the official military records indicating otherwise, the Ministry Of Defence denied the fact that Toğay Gültekin had been examined on 17 March 2004 by the military doctor who decided to refer him to hospital.", "According to that Ministry, Toğay Gültekin had not gone to the infirmary between 16 February 2004 and 20 March 2004 (see paragraph 15 above). 43. Moreover, the Court observes that the importance of the failure to comply with the doctor’s decision was not examined by the Military Administrative Court, which chose to base its rejection of the case on the report prepared by the three medical experts. That court did not seek information from the military authorities about the reasons behind the failure to comply with the decision taken by the doctor on 17 March 2004 and did not take steps to obtain another medical expert report – as requested by the applicants (see paragraph 19 above) – with a view to assessing the extent to which the delay led to Toğay Gültekin’s death. 44.", "The Court has examined the medical expert report summarised above (see paragraph 18 above) and notes that, other than acknowledging that Toğay Gültekin’s referral to hospital had been decided on 17 March 2004 and that that decision had not been acted upon, the three medical experts did not examine the importance of that failure from the standpoint of medical science. 45. The Government, when being given notice of the application, were expressly requested by the Court to comment on the seven-day delay between 17 March and 23 March 2004; they argued that the medical experts had considered that the fact that Toğay Gültekin had not been referred to hospital on 17 March 2004 could not be regarded as a shortcoming. Noting the absence of any assessment made by medical experts in that respect, the Court considers the Government’s submissions to be without basis. For the same reasons, the Court also remains unconvinced by the Government’s argument that given that Toğay Gültekin was re-examined on 20 March 2004, the failure to transfer him to hospital did not amount to a violation of the Convention (see paragraph 29 above).", "46. The Court observes that the military authorities’ shortcomings were not limited to the failure to take Toğay Gültekin to hospital on 17 March 2004. It observes that when Toğay Gültekin visited the regimental infirmary once again on 20 March 2004 (see paragraph 19 above) the other military doctor who examined him does not seem to have sought information as to the decision taken by his colleague on 17 March 2004 and does not seem to have consulted the medical records from which he would have seen that Toğay Gültekin had complained of the possibility of having contracted hepatitis a short while ago. Had the doctor (who had diagnosed Toğay Gültekin with infection of the upper respiratory tract (see paragraph 18 above)) done so, he could have realised that the symptoms were in fact those of hepatitis and not those of an upper respiratory tract infection –which, according to the three university professors, are similar – and could have made attempts to ensure Toğay Gültekin’s referral to hospital. 47.", "The Court observes that the shortcomings and failures on the part of the military authorities did not end there. When Toğay Gültekin’s condition deteriorated and his symptoms became impossible to be misinterpreted or ignored, a military doctor at the regiment’s infirmary referred him to hospital with suspected hepatitis. Nevertheless, that decision was also not acted upon until the following day (see paragraph 7 above). As is the case with the other failures examined above, no explanations or justifications were proffered by the Government in respect of this final one. 48.", "The Court has stated above that what was expected from the national authorities was to do everything which could reasonably have been expected of them under the circumstances to protect Toğay Gültekin’s right to life (see paragraphs 36 and 41 above). Having examined the military investigation and the administrative proceedings conducted at the national level, and highlighted the shortcomings, the Court concludes that the Government have failed to satisfy their burden of showing that the authorities complied with their positive obligation by taking timely and adequate measures in order to prevent the fatal outcome in the present case. 49. There has accordingly been a violation of Article 2 of the Convention on account of the Government’s failure to comply with their positive obligation to protect Toğay Gültekin’s right to life. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 51. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 2 of the Convention. Done in English, and notified in writing on 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithPaul LemmensRegistrarPresident" ]

[ "FOURTH SECTION CASE OF VASILEVSKA AND BARTOŠEVIČ v. LITHUANIA (Applications nos. 38206/11 and 18054/12) JUDGMENT (Merits) STRASBOURG 18 December 2018 This judgment is final but it may be subject to editorial revision. In the case of Vasilevska and Bartoševič v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Paulo Pinto de Albuquerque, President,Egidijus Kūris,Iulia Antoanella Motoc, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 27 November 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 38206/11 and 18054/12) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Ms Lilija Vasilevska and Mr Tadeuš Bartoševič (“the applicants”), on 23 May 2011 and 25 January 2012.", "2. The applicants were represented by Ms E. Jankovska, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, most recently Ms K. Bubnytė-Širmenė. 3. Application no.", "38206/11 was communicated to the Government on 6 December 2011. As for application no. 18054/12, the complaint concerning Article 1 of Protocol No. 1 to the Convention was communicated to the Government on 18 October 2017, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1960 and 1959 respectively and live in Vilnius. 5. In 1991 the applicants’ grandfather, P.S., applied for restoration of his property rights to land which had been nationalised by the Soviet regime. In 1994 the administrative authorities acknowledged that P.S.", "had the right to have his property rights restored. 6. On 28 September 2004 the Vilnius County Administration (hereinafter “the VCA”) restored P.S.’s property rights by giving him 8.17 hectares of land, consisting of several plots in Kryžiokai and Naujaneriai, areas in the Vilnius city municipality. 7. On 25 May 2005 P.S.", "sold a plot of 0.50 hectares out of the 8.17 hectares given to him to S.M. On 30 June 2005 P.S. sold a plot of 1.27 hectares to Ž.J. Both sale agreements were certified by a notary. 8.", "On 26 July 2005 P.S. died. The applicants were issued with a certificate of inheritance in respect of his estate on 21 December 2005. A. Annulment of property rights to 2.50 hectares 9. On 28 July 2008 the prosecutor of the Vilnius Region (hereinafter “the prosecutor”) lodged a claim with the Vilnius Regional Court, seeking to have P.S.’s property rights to 2.50 of the 8.17 hectares given to him annulled.", "The prosecutor submitted that 2.50 hectares of the plot was covered by forest. Since that forest was situated in a city, it was considered a forest of national importance and could therefore only be owned by the State (see the relevant domestic law cited in Beinarovič and Others v. Lithuania, nos. 70520/10 and 2 others, §§ 86-89, 12 June 2018). In view of the circumstances, the VCA’s decision had to be declared unlawful and its effects annulled. The prosecutor asked that after annulling P.S.’s property rights to that part of the land, the applicants’ property rights to it also be annulled.", "10. The applicants and the VCA disputed the prosecutor’s claim. However, on 21 October 2009 the Vilnius Regional Court allowed it. On 24 May 2010 the Court of Appeal dismissed an appeal lodged by the applicants, and on 10 December 2010 the Supreme Court dismissed their appeal on points of law, upholding the lower courts’ decisions in their entirety. B. Annulment of property rights to 0.15 hectares 11.", "On 15 December 2008 the prosecutor lodged a further claim with the Vilnius Regional Court, seeking to have P.S.’s property rights to 0.15 hectares of the 8.17 hectares given to him annulled, on the grounds that it was covered by a forest of national importance, as well as to have the applicants’ property rights to that part of the plot annulled. Since the 0.15 hectares had been sold to S.M. (see paragraph 7 above), the prosecutor asked that after annulling P.S.’s property rights, the sale agreement between him and S.M. be annulled in respect of that part of the land. 12.", "The applicants disputed the prosecutor’s claim. However, on 10 December 2009 the Vilnius Regional Court allowed it. The court annulled P.S.’s property rights to the 0.15 hectares, as well as the sale agreement between P.S. and S.M. with respect to that amount of land.", "It stated that the applicants, as P.S.’s heirs, had to take over his legal obligations, and ordered them to return to S.M. what he had paid for the 0.15 hectares – 49,500 Lithuanian litai (LTL, approximately 14,340 euros (EUR)). 13. On 23 September 2010 the Court of Appeal dismissed an appeal lodged by the applicants, and on 11 April 2011 the Supreme Court dismissed their appeal on points of law, upholding the lower courts’ decisions in their entirety. 14.", "The Court has not been informed whether the applicants have paid the amount of LTL 49,500 (approximately EUR 14,340) to S.M. C. Annulment of property rights to 0.87 hectares 15. On 14 November 2008 the prosecutor lodged yet another claim with the Vilnius Regional Court, seeking to have P.S.’s property rights to 0.87 hectares of the 8.17 hectares given to him annulled, on the grounds that it was covered by a forest of national importance, as well as to have the applicants’ property rights to that part of the plot annulled. Since the 0.87 hectares had been sold to Ž.J. (see paragraph 7 above), the prosecutor asked that after annulling P.S.’s property rights, the sale agreement between him and Ž.J.", "be annulled in respect of that part of the land. 16. The applicants disputed the prosecutor’s claim, but on 8 March 2010 the Vilnius Regional Court allowed it. The court annulled the VCA’s decision to restore P.S.’s property rights in the part concerning the 0.87 hectares, as well as the sale agreement between P.S. and Ž.J.", "in respect of that amount of land. It ordered the applicants, as P.S.’s heirs, to return to Ž.J. what she had paid for the 0.87 hectares – LTL 188,730 (approximately EUR 54,660). 17. The applicants appealed against the first-instance court’s decision, but on 12 July 2011 the Court of Appeal upheld it in its entirety.", "The applicants then lodged an appeal on points of law, but on 19 September 2011 the Supreme Court refused to examine it on the basis that it raised no important legal issues. 18. On 22 August 2013 the applicants paid to Ž.J. the amount of LTL 188,730 (approximately EUR 54,660), as well as LTL 6,440 (approximately EUR 1,865) in bailiff’s expenses. D. Subsequent restitution process 19.", "On 23 February 2012 the applicants received a letter from the National Land Service (the institution which took over the relevant functions of the VCA after an administrative reform – hereinafter “the NLS”) confirming that, after the courts had annulled P.S.’s property rights to 3.52 hectares of land, he had retained the right to have those property rights restored. The applicants were informed of the forms of restitution provided for by the domestic law (ibid., § 92) and asked to inform the authorities of their preferred form of restitution. It is unclear whether the applicants replied to this letter. 20. On 24 July 2012 the applicants received another letter from the NLS which stated that there was a possibility for the applicants to receive a plot of land for the construction of an individual home in the Vilnius city area, but as there were 4,806 other candidates waiting to receive plots in the area, the restitution process would take a long time.", "The applicants were asked to consider an alternative form of restitution, such as being given a plot of land in a rural area, a plot of land for the construction of an individual home in a different city, or monetary compensation (ibid.). They were also informed that there remained about 0.10 hectares of vacant land in Kryžiokai, so if they wished to receive a plot in that area, their request would be considered when the land plan was being prepared. 21. On 21 August 2012 the applicants sent a letter to the NLS. They submitted that the annulment of their property rights to 3.52 hectares of land had caused them pecuniary damage in the amount of LTL 627,630 (approximately EUR 181,770), consisting of the value of the 2.50 hectares of land which had been taken away from them (see paragraph 9 above), according to a private assessment, as well as the amounts which the applicants had been ordered to pay to S.M.", "and Ž.J. (see paragraphs 12 and 16 above). In the applicants’ view, being put on the list with 4,806 other candidates and being made to wait for an undetermined period of time for restitution was unacceptable. The applicants asked to be allocated a plot of land for the construction of an individual home in Vilnius in the order of priority, and if that was not possible, to be informed how many plots were available in Vilnius and when they might expect to receive one. They also stated that they would agree to receive a plot of land in Kryžiokai but would first want to know its exact location.", "The applicants stated that they did not wish to choose any other form of restitution. 22. On 14 December 2012 the NLS approved the list of candidates to receive plots of land in several areas around Vilnius, including Kryžiokai. The applicants were included in that list as candidates to receive 3.52 hectares of land. On 31 December 2012 the NLS held a meeting at which candidates were offered plots in the relevant areas.", "The applicants took part in that meeting and chose four plots, measuring a total of 0.8035 hectares. As regards the remaining land, they stated that they would wait for the decision of the European Court of Human Rights in their case. However, as it appears from the information at the Court’s possession, those four plots were eventually not given to the applicants, for reasons not provided to the Court. 23. On 21 August 2014 the NLS adopted a land plan of the aforementioned areas around Vilnius, as well as the list of individuals who would be allocated plots in those areas.", "The applicants were included in the list and were entitled to receive two plots of land, measuring a total of 0.203 hectares. The applicants later submitted to the Court that those two plots included installations and buildings belonging to third parties. 24. On 21 April 2015 the applicants sent a letter to the NLS, asking it to temporarily suspend the planning of the two aforementioned plots “while court proceedings [were] ongoing” (kol vyksta teismai). The Government submitted that the applicants’ letter must have been referring to the proceedings before the Court, as no relevant domestic proceedings had been ongoing at that time.", "25. On 25 May 2016 the applicants took part in another candidates’ meeting and chose three plots, measuring a total of 0.23 hectares. It does not appear that they were offered any more plots at that meeting. 26. In another candidates’ meeting held on 10 July 2018 the applicants were offered a plot of 0.1239 hectares in joint ownership with a third party, but they refused it on the grounds that such joint ownership would not be financially beneficial to them.", "27. On 11 October 2018 the NLS adopted a decision to restore P.S.’s property rights by giving him 0.23 hectares of land. The decision stated that his rights to the remaining 3.29 hectares would be restored at a later date. 28. At the date of the latest information provided to the Court (15 October 2018), the applicants’ property rights to 3.29 hectares of land had still not been restored.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 29. For the relevant domestic law and practice, see Beinarovič and Others v. Lithuania (nos. 70520/10 and 2 others, §§ 84-103, 12 June 2018). THE LAW I. JOINDER OF THE APPLICATIONS 30.", "Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court). II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 31. The applicants complained that their property rights had been annulled because of mistakes made by the authorities, and that to date they had not been fully compensated either by restitution in kind or in monetary terms.", "They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility Exhaustion of domestic remedies 32. The Government submitted that the applicants could have instituted separate civil proceedings against the State and claimed compensation for non-pecuniary damage caused by the unlawful actions of the authorities.", "They referred to several rulings of the Supreme Court and the Supreme Administrative Court which they considered relevant in the circumstances (see the rulings cited in Beinarovič and Others, nos. 70520/10 and 2 others, § 107, 12 June 2018). 33. The applicants submitted that in their appeals they had asked the courts to protect their property rights and apply the law in a “fair” manner, but no compensation had been offered to them. 34.", "The Court has already examined the Government’s submissions related to domestic remedies which are available in a situation such as that of the applicants, and has held that instituting separate civil proceedings against the State could not be considered an effective remedy within the meaning of Article 35 § 1 of the Convention (ibid., §§ 111-13). It sees no reason to reach a different conclusion in the present case. The Government’s objection is therefore dismissed. 35. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 1. The parties’ submissions 36. The applicants submitted essentially the same arguments as those submitted by the applicants in Beinarovič and Others (cited above, §§ 121‑24).", "37. The Government submitted essentially the same arguments as those which they had submitted in Beinarovič and Others (cited above, §§ 125‑31). In particular, they submitted that the domestic authorities had been active in contacting the applicants and informing them about the process, but they were not entitled to take over the initiative from the applicants, and the latter had failed to cooperate. The restitution could not be finalised until the applicants expressed their intentions as to their preferred form of restitution. The Government therefore argued that the delays in the restitution process had been imputable to the applicants.", "2. The Court’s assessment (a) Existence of an interference with the right to peaceful enjoyment of possessions, its lawfulness and legitimate aim 38. In its recent judgment in the case of Beinarovič and Others (cited above), the Court examined decisions to annul the applicants’ property rights to land which had been given to them by public authorities, on the grounds that that land included forests of national importance. In that case, the Court found that the annulment of the applicants’ property rights had constituted an interference with their right to the peaceful enjoyment of their possessions, that that interference had been in accordance with the law, and that it had pursued a legitimate aim in the public interest, namely the protection of forests of national importance (ibid., §§ 132-37). In view of the similarities between the facts of those cases and those of the present one, the Court sees no reason to depart from the conclusions reached in the judgment in Beinarovič and Others.", "It remains to be ascertained whether the interference was proportionate in the particular circumstances of the present case. (b) Proportionality of the interference 39. The relevant general principles concerning the proportionality of an interference with the right to the peaceful enjoyment of one’s possessions in cases where that interference results from the need to correct mistakes made by public authorities were summarised in Beinarovič and Others (cited above, §§ 138-42). 40. In the present case, the applicants complained that the annulment of their property rights to the land which had been restored to their grandfather had been contrary to Article 1 of Protocol No.", "1 to the Convention. In line with its case-law (ibid., §§ 139, 140 and 143), the Court considers that the Lithuanian authorities were entitled to correct their mistakes and annul the restoration of the applicants’ property rights in order to protect forests classified as being of national importance. Accordingly, it is of the view that the annulment in itself did not constitute a violation of the applicants’ rights under Article 1 of Protocol No. 1. At the same time, the Court underlines that the correction of the authorities’ errors should not create disproportionate new wrongs (ibid., § 140, and the cases cited therein).", "It must therefore assess whether the authorities complied with their obligation to promptly and adequately compensate the applicants for the losses which they had suffered as a result of the authorities’ mistakes. 41. The applicants’ property rights were annulled by final court decisions adopted on 10 December 2010, 11 April 2011 and 19 September 2011 (see paragraphs 10, 13 and 17 above). By letters sent in February and July 2012, the NLS informed the applicants about the forms of restitution provided for by law and asked them to indicate their choice (see paragraphs 19 and 20 above), and in December 2012 the applicants were invited to a meeting at which they chose several plots (see paragraph 22 above). The Court is prepared to accept that up to that point, the authorities acted with sufficient promptness.", "42. However, despite the fact that during the meeting held in December 2012 the applicants chose four plots, measuring a total of 0.8035 hectares, those plots were not given to them (see paragraph 22 above). It appears that almost two years later the applicants were offered two different plots, but they refused those plots on the grounds that they included installations and buildings belonging to third parties (see paragraph 23 above) – reasons which cannot be considered unjustified. The applicants were next invited to a meeting of candidates only in May 2016 (see paragraph 25 above); they chose several plots at that meeting, but those plots were only given to them more than two years later, in October 2018 (see paragraph 27 above). The Court cannot overlook the lengthy periods of inactivity between the actions taken by the authorities with respect to the applicants, in particular from December 2012 to August 2014 (see paragraphs 22 and 23 above) and from May 2016 to July 2018 (see paragraphs 25 and 26 above), when it appears that no actions at all were taken.", "43. Although the Government argued that the delays in the restitution process were imputable to the applicants, the Court cannot accept this argument. It observes that the applicants participated in candidates’ meetings, they chose some of the plots offered to them and refused others for reasons which do not appear unjustified (see paragraphs 23 and 26 above). Even though during the meeting held in December 2012 the applicants stated that they wished to wait for the Court’s decision with regard to some of their property rights, that did not preclude the authorities from restoring their rights to the four plots which they had chosen at that same meeting (see paragraph 22 above). Furthermore, while in April 2015 the applicants sent a letter asking the NLS to stop planning the two plots which they had previously chosen (see paragraph 24 above), that letter concerned only those specific plots, and afterwards the applicants continued participating in the restitution process and chose several other plots offered to them (see paragraphs 25 and 26 above).", "Accordingly, it cannot be said that the applicants effectively suspended the restitution process (compare and contrast Beinarovič and Others, cited above, § 162). The Court therefore sees no grounds to find that the applicants themselves significantly contributed to the delays. 44. The Court further observes that the authorities were aware of the applicants’ individual situation – specifically, that their property rights had already been restored and later had to be annulled because of the mistakes made in the restitution process (see paragraphs 19 and 20 above). Furthermore, in their letter of August 2012, the applicants reiterated that they had already undergone the process once, and asked for priority treatment (see paragraph 21 above).", "However, their request for such treatment was not addressed at any stage. 45. Accordingly, the Court finds that the authorities failed to act with sufficient promptness to restore the applicants’ property rights. The restitution process included significant periods of inactivity which were imputable solely to the authorities, and as a result, at the date of the last available information (see paragraph 28 above), the applicants’ property rights to 3.29 hectares of land have still not been restored after more than seven years. There has therefore been a violation of Article 1 of Protocol No.", "1 to the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46. The applicants further complained under Article 6 § 1 and Article 13 of the Convention that the domestic courts in the proceedings concerning the annulment of their property rights had disregarded their arguments and had adopted unfair and unfounded decisions. Lastly, they complained under Article 14 of the Convention that they had been discriminated against on the basis of their national origin – they submitted that the majority of individuals who had had their rights to forests restored and later annulled had been Polish.", "47. Having regard to its findings under Article 1 of Protocol No. 1 to the Convention, the Court considers that no separate issues arise under Articles 6 § 1 and 13 of the Convention. It therefore finds that it is not necessary to examine the admissibility and merits of the applicants’ complaints under these provisions. 48.", "As to the applicants’ complaint under Article 14 of the Convention, the Court finds that the material in its possession does not disclose any appearance of a violation of that provision. This part of the applications must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 49. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 1. Pecuniary damage 50. The applicants claimed 186,290 euros (EUR) in respect of pecuniary damage. They submitted that that amount corresponded to the market value of the land which had been taken from them and the amounts which the courts had ordered them to pay to S.M. and Ž.J.", "51. The Government submitted that the best way of remedying the violations of the applicants’ rights was to restore their property rights in one of the forms provided for by domestic law, and that awarding any other compensation would be premature. They also argued that the assessment of the market value of the land had been carried out by a private company at the applicants’ request and could not be regarded as independent. 52. The Court considers that the question of the application of Article 41 in respect of pecuniary damage is not ready for decision.", "It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule 75 §§ 1 and 4 of the Rules of Court). 2. Non-pecuniary damage 53. The applicants claimed EUR 28,960 in respect of non-pecuniary damage for the stress and inconvenience caused by the prolonged violations of their rights. 54.", "The Government submitted that the applicants’ claim in respect of non-pecuniary damage was excessive and unsubstantiated. 55. The Court considers that the applicants undoubtedly suffered distress and frustration in view of their prolonged inability to have their property rights restored. However, it considers the amount claimed by them excessive. Making its assessment on an equitable basis, the Court awards the applicants EUR 6,500 jointly in respect of non-pecuniary damage.", "B. Costs and expenses 56. The applicants also claimed 1,474 Lithuanian litai (LTL, approximately EUR 427) for the costs and expenses incurred before the domestic courts. They provided copies of receipts showing that they had paid that amount in court fees and litigation costs. 57.", "The Government submitted that those expenses had not been “incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention, as required by the Court” and should therefore be rejected. 58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses 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 grants the claim for costs and expenses in full and awards the applicants EUR 427 under this head (see, mutatis mutandis, Beinarovič and Others, cited above, §§ 175-77). C. Default interest 59.", "The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applicants’ complaint concerning Article 1 of Protocol No. 1 to the Convention admissible and the complaint concerning Article 14 of the Convention inadmissible; 3.", "Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention; 4. Holds that there is no need to examine the admissibility and merits of the applicants’ complaints concerning the alleged unfairness of proceedings under Articles 6 § 1 and 13 of the Convention; 5. Holds that the question of the application of Article 41 is not ready for decision in so far as pecuniary damage resulting from the violation found in the present case is concerned, and accordingly: (a) reserves the said question; (b) invites the Government and the applicants to submit, within six months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; (c) reserves the further procedure and delegates to the President the power to fix the same if need be; 6. Holds (a) that the respondent State is to pay the applicants jointly, within three months, the following amounts: (i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 427 (four hundred and twenty-seven euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7.", "Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiPaulo Pinto de AlbuquerqueDeputy RegistrarPresident" ]

[ "SECOND SECTION CASE OF AHMET METE (2) v. TURKEY (Application no. 30465/02) JUDGMENT STRASBOURG 12 December 2006 FINAL 23/05/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ahmet Mete (2) v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrR.", "Türmen,MrM. Ugrekhelidze,MrsE. Fura-Sandström,MsD. Jočienė,MrD. Popović, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 21 November 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 30465/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ahmet Mete (“the applicant”), on 22 October 2001. 2. The applicant, who had been granted legal aid, was represented by Mr A. Terece, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. The applicant alleged that he had been subjected to torture and ill‑treatment while in police custody and that there had been no adequate or effective investigation into his complaints. He invoked Articles 3 and 13. 4. On 11 October 2005 the Court decided to give notice of the application to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and lives in Izmir. 6.", "On 8 July 2001 at about 11 a.m., the applicant was arrested in Nusaybin by policemen from the Anti-Terrorism Department of the Nusaybin Security Directorate on suspicion of being a member of the illegal PKK (the Kurdistan Workers’ Party). He was handcuffed and taken to the Security Directorate Building. 7. The same day, the applicant was taken to the Nusaybin Hospital where he was examined by a doctor. No signs of injury were found on his body.", "8. The applicant was blindfolded and interrogated in the security directorate. During his interrogation, the applicant was allegedly beaten, insulted, hosed with pressurised water, given electric shocks and raped with a truncheon. 9. On 10 July 2001 the applicant was once again examined by a doctor and no signs of ill-treatment were found on his body.", "10. The same day at about 7 p.m., the applicant was handed over to the Izmir Security Directorate for further investigations. During his detention in Izmir, the applicant was allegedly blindfolded, insulted and threatened with ill-treatment. 11. On 13 July 2001 the applicant was taken to the Atatürk Hospital, where he was examined by a doctor.", "In his report, the doctor noted the presence of an old bruise, measuring 1x1 cm, on the front part of the applicant’s left arm and another bruise, measuring 1x1 cm, on the front part of his right arm. 12. Subsequently, on the same day, the applicant was taken before the investigating judge at the Izmir Magistrate’s Court, who ordered his detention on remand. Before the judge, the applicant complained that he had been ill-treated during his police custody in Nusaybin. 13.", "On 17 July 2001 the applicant filed an objection against the remand decision. In his petition, the applicant maintained that he had been ill-treated during his detention. 14. On 14 August 2001 the Izmir State Security Court Public Prosecutor initiated criminal proceedings against the applicant in the Izmir State Security Court, accusing him of being a member of an illegal organisation. 15.", "During the first trial, which was held on 18 October 2001, the applicant repeated his allegations of ill-treatment. Upon the order of the court, the Izmir Public Prosecutor initiated an investigation into the applicant’s allegations. 16. On 16 November 2001 Mr M.Ç., a police officer from the Anti-Terrorism Department acting as a rapporteur, submitted his report to the Izmir Security Department. He advised that no proceedings be initiated against the accused police officers as the applicant’s allegations were unsubstantiated.", "The rapporteur further contended that the accusations were deceitful and were part of a scenario used by the terrorist organisation to dishonour the fight against terrorism. 17. On 27 November 2001 the İzmir Public Prosecutor concluded that the applicant’s allegations concerning his police custody in Nusaybin should be separated from the file. He accordingly transferred this part of the case to the Nusaybin Public Prosecutor for further investigation. On the same day, the prosecutor further decided that no prosecution should be brought against the accused police officers as there was insufficient evidence in support of the applicant’s allegations.", "18. On 12 December 2001 the applicant appealed against this decision. He requested a detailed medical examination to prove that he had been ill-treated in custody. On 19 February 2002 the Karşıyaka Assize Court dismissed his appeal, upholding the reasoning of the Izmir public prosecutor. 19.", "On 29 January 2002 the Nusaybin Public Prosecutor took statements from the two doctors who had examined the applicant on the first and last days of his custody in Nusaybin. Mr Ramazan Kaya, who had drafted the first medical report dated 8 July 2001, explained to the prosecutor that there had been no signs of ill-treatment on the applicant’s body. The second doctor, Ms Sevda Mecit, also stated that she had examined the applicant and asked him whether he had any complaints. In the absence of any finding, she had drafted the medical report dated 10 July 2001. 20.", "Between 4 February 2001 and 6 March 2002, the eight police officers, who had been involved in the applicant’s arrest and interrogation, gave statements to the public prosecutor. They all refuted the allegations against them and stated that they had not ill-treated the applicant. 21. On 1 March 2002 the Nusaybin Public Prosecutor delivered a decision of non-prosecution. In his decision, the prosecutor referred to the two medical reports dated 8 July 2001 and 10 July 2001, which indicated that there were no signs of ill-treatment on the applicant’s body.", "Consequently, the prosecutor found the applicant’s allegations to be unsubstantiated. 22. On 25 July 2002 the applicant appealed against this decision. He requested a detailed medical examination to prove his allegations. 23.", "On 7 August 2002 the Mardin Assize Court rejected the applicant’s appeal. II. RELEVANT DOMESTIC LAW 24. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (no. 33097/96 and 57834/00, § 96‑100, 3 June 2004) and Elçi and Others v. Turkey (nos.", "23145/93 and 25091/94, §§ 573 and 575, 13 November 2003). THE LAW 25. The applicant alleged that he had been subjected to torture and ill‑treatment while in police custody, and that there had been no adequate or effective investigation into his complaints. He invoked Articles 3 and 13, which read as follows. Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” I. ADMISSIBILITY 26.", "The Court considers that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 27.", "The applicant alleged that while he was in held in police custody in Nusaybin, he was beaten, insulted, hosed with pressurised water, given electric shocks and raped with a truncheon. He further complained that, during his detention in İzmir, he was blindfolded, insulted and threatened with ill-treatment. 28. The Government submitted that the applicant’s allegations were baseless. They contended that the medical reports showed that there were no traces of ill-treatment on the applicant’s body.", "29. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no.", "25803/94, § 95, ECHR 1999-V, and Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). 30. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, extracts; Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004).", "Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV). 31. The Court is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).", "Nonetheless, where allegations are made under Article 3 of the Convention, as in the present case, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 32, and Avşar, cited above, § 283). 32. In the instant case, the ill-treatment complained of by the applicant consisted of threats, insults, beatings, electric shock treatment, being hosed with pressurised water, and raped with a truncheon. Nonetheless, several elements cast doubt on the veracity of the applicant’s claims.", "33. The Court notes that the applicant has not produced any conclusive evidence in support of his allegations of ill-treatment. It is observed that the applicant was examined by a doctor three times - on 8 July 2001, 10 July 2001 and 13 July 2001. The first two reports indicate that there were no signs of ill-treatment on the applicant’s body (see paragraphs 7 and 9 above). The only concrete evidence submitted to the Court is the medical report dated 13 July 2001, which noted the presence of an old bruise, measuring 1x1 cm, on the front part of the applicant’s left arm and another bruise, measuring 1x1 cm, on the front part of his right arm (see paragraph 11 above).", "The Court notes the lack of details in this report. However, it considers that such indications are insufficient to substantiate the severe ill-treatment described by the applicant. Thus, there is nothing in the case file to show that the applicant was ill-treated as alleged. 34. In conclusion, since the evidence before it does not enable it to find beyond all reasonable doubt that the applicant was subjected to ill-treatment, the Court does not find it proven that there has been a violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 35. The applicant alleged that he did not have an effective remedy in respect of his complaints of torture and ill-treatment, in breach of Article 13 of the Convention. 36. The Government contested that argument.", "37. The Court reiterates that the nature of the right safeguarded under Article 3 has implications for Article 13. Where an individual has an arguable claim that he has been tortured or subjected to serious ill-treatment by agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigatory procedure (see Talat Tepe, cited above, § 81). 38. The Court further reiterates that for an investigation into alleged torture or ill-treatment by State officials to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events.", "This means not only a lack of hierarchical or institutional connection, but also practical independence (see, among other authorities, Oğur v. Turkey [GC], no. 21594/93, § 91, ECHR 1999-III). 39. On the basis of the evidence adduced in the present case, the Court has not found it proved beyond reasonable doubt that the applicant had been ill-treated by police officers. As it has held in previous cases, however, that does not preclude the complaint in relation to Article 3 from being an “arguable” one for the purposes of Article 13 (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 112, and Talat Tepe, cited above, § 83).", "40. In the instant case, the Court observes that, when the Izmir public prosecutor filed the indictment against the police officers, he relied on the medical reports of the applicant. However, the ensuing criminal proceedings failed to provide any explanation as to the origin of the bruises, which were recorded in the report dated 13 July 2001. It appears from the case file that, when delivering their respective non-prosecution decisions, neither the Nusaybin Public Prosecutor nor the Izmir Public Prosecutor tried to establish how these injuries were caused. The Court also finds it regrettable that no additional medical examination was ordered during the domestic investigation although the applicant had repeatedly made this request to the domestic authorities (see paragraphs 18 and 22 above).", "As a result of the failure to perform an additional medical examination and having regard to the lack of details in the three medical reports, the Court finds that the applicant was deprived of the fundamental guarantees to which persons in detention are entitled (see Batı and Others, cited above, §143). 41. As to the investigation made by the Izmir Public Prosecutor, the Court notes that the public prosecutor did not summon any of the police officers who had been involved in the interrogation of the applicant during his custody between 10 and 13 July 2001; nor was a statement taken from the doctor who had drafted the medical report dated 13 July 2001. As to the investigation held by the Nusaybin Public Prosecutor, the Court finds it striking that neither the applicant nor his representative were ever given an opportunity to meet the accused police officers face to face during the course of the investigation. 42.", "In view of the above, the Court concludes that the domestic proceedings did not provide the thorough, effective remedy required by Article 13 of the Convention. There has accordingly been a violation of this provision. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 44. The applicant claimed 25,000 euros (EUR) in respect of non-pecuniary damage. 45. The Government submitted that this claim was excessive. 46.", "The Court considers that the applicant must have suffered some moral damage which cannot be compensated solely by the Court’s finding of a violation. Having regard to the nature of the violation found in the present case and ruling on an equitable basis, the Court awards the applicant EUR 5,000 for non-pecuniary damage. B. Costs and expenses 47. The applicant also claimed a total of EUR 7,500 for the costs and expenses incurred before the domestic courts and the Strasbourg Court.", "48. The Government contested the claim. 49. The Court may make an award in respect of costs and expenses in so far that they were actually and necessarily incurred and were reasonable as to quantum (see Sawicka v. Poland, no. 37645/97, § 54, 1 October 2002).", "Making its own estimate based on the information available, the Court awards the global sum of EUR 1,500, less the sum of EUR 850 received in legal aid from the Council of Europe C. Default interest 50. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been no violation of Article 3 of the Convention; 3.", "Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into New Turkish Liras at the date of settlement: (i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, less EUR 850 (eight hundred and fifty euros) received in legal aid; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 12 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.- P. CostaRegistrar President" ]

[ "FIRST SECTION CASE OF KIRSANOVA v. RUSSIA (Application no. 76964/01) JUDGMENT STRASBOURG 22 June 2006 FINAL 22/09/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision In the case of Kirsanova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrsN. Vajić,MrA.", "Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann,MrS.E. Jebens, judges,and Mr S. Nielsen, Section Registrar, Having deliberated in private on 1 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 76964/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mrs Alla Zakharovna Kirsanova (“the applicant”), on 17 October 2001. 2. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 16 November 2004 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS 4. The applicant, Mrs Alla Zakharovna Kirsanova, is a Russian national, who was born in 1955 and lives in the village of Novoselye of the Lomonosovskiy District of the Leningradskiy Region. 1.", "Background of the case 5. On 28 May 1997 the St-Petersburg City Council (“the City Council”, Администрация Санкт-Петербурга) took a decision to grant the applicant’s family the right to reside in a flat situated in the village of Novoselye. It appears that soon after the applicant moved in, she discovered that the flat had been built with constructional defects. 6. On 14 September 1998 the applicant and her family members filed a civil claim against a private company which had built the flat in question in the Lomonosovskiy District Court of the Leningradskiy Region, (“the Lomonosovskiy District Court”, Ломоносовский районный суд Ленинградской области).", "They demanded compensation for pecuniary and non-pecuniary losses allegedly caused by the faulty construction of the applicant’s flat. 7. The application and supporting documents reached the Lomonosovskiy District Court on 16 September 1998. 2. First instance hearings at the Lomonosovskiy District Court of the Leningradskiy Region 8.", "The date of the first hearing in the case was fixed on 16 February 1999. The applicant submits that the hearing did not take place as the Lomonosovskiy District Court registrar had mailed the summons to the parties only on 15 February 1999 and, as a result, the summons arrived too late. The summons and postal envelopes were submitted to the Court by the applicant. From the postal stamps it follows that the summons were indeed dispatched on 15 February 1999. 9.", "According to the Government, the hearing of 16 February 1999 did not take place due to the parties’ failure to appear. They further submitted that the parties had not excused their absence and that the hearing had been postponed accordingly. 10. The hearings scheduled for 2 April, 25 June, 15 October, 19 November 1999 and 14 January 2000 did not take place either. 11.", "The Government submitted that the hearing of 2 April 1999 had not taken place due to the absence of a judge and the hearing of 25 June 1999 had been adjourned because of the non-attendance of the respondents. As regards the hearing of 15 October 1999, the Government submitted that it had been adjourned by reference to decision to change procedural status of the respondents, whilst the hearings of 19 November 1999 and 14 January 2000 had not taken place because of the judge’s involvement in another set of proceedings. 12. According to the applicant, the hearings of 19 January and 8 February 2000 were conducted in the absence of the defendant who failed to appear. 13.", "According to the Government, these hearings did not take place due to the parties’ failure to appear. 14. On 21 February 2000 the applicant amended her claims to the effect that the City Council became a principal defendant in the case whereas the private company which had built a flat became a third party. The applicant now also demanded the court to annul the City Council decision of 28 May 1997. 15.", "Since the defendant in the case changed, on 3 March 2000 the case was transferred for examination to the Admiralteyskiy District Oktyabrskiy Federal Court of St-Petersburg (“the Admiralteyskiy District Court”, Октябрьский федеральный суд Адмиралтейского района Санкт-Петербурга). 3. First instance hearings at the Admiralteyskiy District Oktyabrskiy Federal Court of St Petersburg 16. The case reached the Admiralteyskiy District Court on 24 March 2000. 17.", "On 24 May 2000 the applicant amended her claim again; her family now demanded a new flat instead of the old one and more damages. 18. It appears that the applicant simultaneously lodged a number of complaints in connection with her housing problem with various State bodies. On an unspecified date a local Prosecutor’s Office responded to the applicant’s complaint and requested the case-file from the Admiralteyskiy District Court for examination. It appears that between June and October 2000 the hearings in the case could not go on as the case-file was under examination at the local Prosecutor’s Office.", "19. The hearing scheduled for 7 December 2000 was adjourned until 5 February 2001 because the new defendant, the City Council, had not been properly notified of the case. On 5 February 2001 the court adjourned the hearing on the motion of the parties as certain documents were lacking. The hearings of 27 February and 23 May 2001 did not take place for the same reason. 20.", "According to the Government, at the hearing of 5 February 2001 the applicant invited the court to request a number of documents from various organisations. The hearings of 27 February and 23 May 2001 could have taken place if not for the applicant’s request and the failure of the above organisations to respond. 21. On 10 August 2001 the applicant failed to appear due to illness and the hearing was re-scheduled. On 15 November 2001 the applicant once again amended the claim; she increased the amount of damages sought.", "The hearing was adjourned for the parties to be able to prepare accordingly. 22. Upon the defendants’ motion, on 29 November 2001 the court ordered a technical expert examination of the applicant’s flat. Once the examination was terminated, the proceedings resumed. The hearing of 8 April 2002 was adjourned on the defendant’s motion and the next hearing did not take place until 22 October 2002.", "23. On 22 October 2002 the Admiralteyskiy District Court rendered the judgment in which it partly granted the applicant’s claim. The court quashed the decision of 28 May 1997, ordered the City Council to grant the applicant’s family another flat, recovered the applicant’s legal costs and dismissed the remainder of the claims. 24. The parties appealed against the judgment of 22 October 2002 to the St-Petersburg City Court (“the City Court”, Судебная коллегия по гражданским делам Санкт-Петербургского городского суда).", "4. Appeal proceedings before the St Petersburg City Court 25. On 14 May 2003 the City Court examined the parties’ appeals and overturned the first instance judgment in part, dismissing the applicant’s claims in full. 26. The court noted that the City Council was under no obligation whatsoever to provide a flat to the applicant’s family, let alone a flat of a particular quality.", "It further found that there was nothing to suggest that the applicant’s family had been unaware of the defects of flat in question from the outset and that they could not have rejected the offer made to them in 1997. 27. Furthermore, the court also suggested that the proper remedy in respect of the applicant’s housing problem was an action for elimination of defects, and not a claim for another flat. 28. Thereafter the applicant challenged the City Court decision of 14 May 2003 by way of supervisory review, but to no avail.", "Her respective applications were rejected by the City Court and the Supreme Court on 4 July 2003 and on 21 May 2004 accordingly. 5. The applicant’s complaint in respect of the allegedly excessive length of proceedings 29. On several occasions, between 1997 and 2002, the applicant complained about the excessive length of the case to the prosecutors and higher courts, requesting them to speed up the proceedings. It appears that these applications were to no avail.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 30. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 31. The Government contested that argument and submitted that the proceedings had not breached the reasonable time requirement of Article 6. 32.", "The applicant maintained her complaints. 33. The period to be taken into consideration began on 16 September 1998 when the applicant filed her court claim and ended on 14 May 2003 with the delivery of the appeal decision in the applicant’s case. Therefore, the total length of proceedings was of four years, seven months and twenty-eight days. A. Admissibility 34.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 35.", "The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII) 36. The Court observes that the proceedings relating to the housing dispute between the applicant and a number of third persons were of a certain complexity. It furthermore considers that the applicant’s conduct, at least to a certain extent, contributed to the length of the proceedings as she amended her claims three times which on one occasion resulted in the transfer of the case to a different court, unintentionally produced an interruption in court hearings between June and October 2000 when the case-file was under examination at the prosecutor’s office and once fell ill which resulted in an adjournment of the hearing of 10 August 2001. 37.", "As regards the conduct of the judicial authorities, the Court notes that it led to substantial delays in the proceedings at first instance. Thus, not only did it take more than six months (between 16 September 1998 and 2 April 1999) for the Lomonosovskiy District Court to schedule hearings of the case but also during the period of three months and four days (between 15 October 1999 and 19 January 2000) the proceedings could not go on due to the judge’s involvement in another set of proceedings. In addition, there were no hearings in the applicant’s case at all during six months and fourteen days between 8 April 2002 and 22 October 2002 and the Government have failed to submit any explanations in this respect. Finally, the Court notes that the respondents in the case did not attend the hearings at least on three occasions on 25 June 1999, 19 January and 8 February 2000 respectively and did not excuse themselves by reference to a good reason, whilst the District Court could have reacted to such conduct but failed to do so. Overall, it can be concluded that out of four years, one month and six days during which the case was pending at first instance (from 16 September 1998 to 22 October 2002), the delay in proceedings clearly attributable to the authorities was of one and a half years.", "38. Having regard to the foregoing, the Court considers that the length of the proceedings did not satisfy the “reasonable-time” requirement. Accordingly, there has been a breach of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 39.", "The applicant complained also that the domestic legal system had failed to afford her an effective remedy against the excessive length of proceedings. She relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 40. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.", "B. Merits 41. The Government submitted that when the applicant had complained to higher judicial authorities, the authorities urged the District Court to speed up the proceedings. 42. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no.", "30210/96, § 156, ECHR 2000-XI). 43. The Court notes that the Government did not, however, indicate whether and, if so, how the applicant could obtain relief – either preventive or compensatory – by having recourse to the higher judicial and other authorities. It was not suggested that this remedy could have expedited the determination of the applicant’s case or provided her with adequate redress for delays that had already occurred. Nor did the Government supply any example from domestic practice showing that, by using the means in question, it was possible for the applicant to obtain such a relief (see Kudła, cited above, § 159, Kormacheva v. Russia, no.", "53084/99, §§ 61-62, 29 January 2004 and Kuzin v. Russia, no. 22118/02, §§ 42-46, 9 June 2005). 44. Accordingly, the Court holds that in the present case there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby she could enforce her right to a “hearing within a reasonable time” as guaranteed by Article 6 § 1 of the Convention. III.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 45. Insofar as the applicant is dissatisfied with the unsuccessful outcome of proceedings in her case, the Court observes that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that she was able to present her arguments as she wished, and the judicial authorities gave them due consideration. Having regard to the facts, as submitted by the applicant, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention. Furthermore according to the domestic courts, the proper remedy in respect of the applicant’s problem was an action for elimination of defects, and not a claim for another flat.", "It does not appear that the applicant has availed herself of this remedy or having done so was unsuccessful. 46. Accordingly, this part of the application must be rejected pursuant to Article 35 § 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48. The applicant claimed 137,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 49. The Government considered these claims excessive.", "50. The Court does not discern any causal link between the violation found and the extensive amount of pecuniary damage alleged; it therefore rejects this aspect of the claim. However, on an equitable basis, it awards the applicant EUR 2,000 in respect of non-pecuniary damage. B. Costs and expenses 51.", "The applicant did not claim reimbursement of her costs and expenses incurred before the domestic authorities and the Court. Accordingly, the Court does not make any award under this head. C. Default interest 52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the excessive length of the proceedings and the lack of effective remedy admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 13 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 22 June 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident" ]

[ "FIRST SECTION CASE OF BOSAK AND OTHERS v. CROATIA (Applications nos. 40429/14 and 3 others – see appended list) JUDGMENT STRASBOURG 6 June 2019 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bosak and others v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Krzysztof Wojtyczek, President,Ksenija Turković,Aleš Pejchal,Armen Harutyunyan,Pere Pastor Vilanova,Pauliine Koskelo,Tim Eicke, judges,and Abel Campos, Section Registrar, Having deliberated in private on 7 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos.", "40429/14, 41536/14, 42804/14 and 58379/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Croatian and two Dutch nationals (“the applicants”), on the dates listed in the Appendix to this judgment. 2. The first three applicants were represented by Ms V. Drenški Lasan, a lawyer practising in Zagreb, and the fourth applicant was represented by Mr A. Ilić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.", "The applicants complained, under Articles 6 and 8 of the Convention, of the unfairness of the criminal proceedings against them and the unlawfulness of secret surveillance carried out in respect of them. 4. On 28 April 2016 and 26 May 2016 the Government were given notice of the above complaints and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Government of the Netherlands did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. On 5 and 20 March 2007 the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) asked an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to authorise the use of secret surveillance measures in respect of M.M., on the grounds that he was suspected of drug trafficking. 6. During the investigation and while secret surveillance measures were being used against M.M., the authorities intercepted and recorded a number of telephone conversations in connection with drug trafficking. The fourth applicant’s telephone number was noted in that respect.", "7. Following an application lodged on 3 May 2007 by the Zagreb County State Attorney’s Office, on 4 May 2007 the investigating judge of the Zagreb County Court authorised the use of secret surveillance measures in respect of the fourth applicant and three other persons, on the grounds that they were suspected of drug trafficking proscribed by Article 173 §§ 1 and 2 of the Criminal Code. Her statement of reasons reads as follows: “On 3 May 2007 the Zagreb County State Attorney’s Office lodged an application for an order for [secret surveillance] measures under Article 180 § 1 (1) of the Code of Criminal Procedure in respect of A.J., [the fourth applicant], G.P. and N.M., due to [there being] probable cause to believe that the criminal offence proscribed by Article 173 §§ 1 and 2 of the Criminal Code had been committed. The application of the Zagreb County State Attorney’s Office is well founded.", "The application refers to the police report ... of 3 May 2007 concerning the use of secret surveillance measures in respect of M.M., alleging that there is probable cause to believe that the persons mentioned [in that report] often communicate about purchasing cocaine, [something] which is established on the basis of telephone conversations with M.M., [a person] in respect of whom this court ordered [secret surveillance] measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure on 5 March 2007. The investigating judge considers that the application is well founded, because in this particular case the investigation of these criminal offences could not be carried out by other means, as [the offences] concern the criminal offence proscribed by Article 173 §§ 1 and 2 of the Criminal Code. Bearing in mind the above facts, the investigating judge [issues] an order under Article 180 § 1 (1) of the Code of Criminal Procedure ... because the stated circumstances point to there being sufficient grounds for suspecting the commission of the criminal offence proscribed under Article 173 §§ 1 and 2 of the Criminal Code.” 8. On 1 June 2007 the Zagreb County Court issued another order, accepting an application by the Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta, hereinafter “the OSCOC”) for the use of secret surveillance measures for a period of three months in respect of the first and fourth applicants and four other persons, on the grounds that they were suspected of drug trafficking proscribed by Article 173 § 3 of the Criminal Code. The judge’s relevant statement of reasons reads as follows: “In explaining its application for an order implementing measures referred to in Article 180 § 1 (1) [in respect of the first applicant] and (3) of the Code of Criminal Procedure [in respect of the first and fourth applicants], the OSCOC refers to the report of the Zagreb Police Department ... of 31 May 2007.", "Namely, by analysing the implementation of surveillance measures and the recording of telephone conversations, that is remote communication by mobile telephones ... used by A.J. and the number ... used by [the fourth applicant], it was established on several occasions that conversations between the persons concerned and other persons were being held regarding the sale of cocaine, that is that the persons concerned, together with several other persons, continuously, as an organised group, were selling the drug cocaine on the Zagreb narcotics market. In addition to the [information stated] above, it appears that A.J. has three places where he stores drugs ... where there is cocaine, and that G.T., K.K. and [the first applicant] are the persons in charge of [those places], and A.J.", "is obviously not satisfied with cocaine leaving those places in an uncontrolled manner. ... The enclosed document delivered with the OSCOC’s application ... of 31 May 2007 and the conversations monitored so far indicate that A.J., with the assistance of [the fourth applicant] has organised a criminal group that sells large amounts of cocaine (several kilograms) in the territory of Zagreb and the Republic of Croatia, [a criminal group] which, in addition to [A.J and the fourth applicant] consists of [the first applicant], G.T., K.K. and T.K.. [The first applicant] was also introduced by A.J. and [the fourth applicant] to a legal business for catering facilities, and it appears that he is the third most important person in that organisation, after [the fourth applicant].", "It follows that there are grounds for suspicion that the above-mentioned persons are involved in the commission of the offence proscribed by Article 173 § 3 of the Criminal Code. ... Given the information stated above, and since there are grounds for suspicion that an offence of narcotic abuse under Article 173 § 3 of the Criminal Code has been committed and that criminal offences of this kind are still being committed, and taking into consideration that inquiries into the criminal offences could not be carried out in any other way or would be carried out with unreasonable difficulties, given how the offences are committed, the application submitted by OSCOC ought to be accepted ...” 9. On 14 June 2007 the OSCOC requested that an order which included additional telephone numbers be issued against the first applicant and A.J. The following day the investigating judge issued a decision allowing a surveillance measure which included new telephone numbers for a period of three months, and suspended the measure regarding the first applicant’s previous telephone numbers.", "The investigating judge explained that the police report of 14 June 2007 attached to the OSCOC’s application indicated that the first applicant and A.J. were using new telephone numbers to organise the smuggling and selling of cocaine, and that the measure was necessary in order to identify persons who were committing the criminal offence of drug trafficking – proscribed by Article 173 § 3 of the Criminal Code – together with the first applicant and A.J. The judge further explained that owing to the specific manner in which the latter criminal offence was being committed, inquiries into that criminal offence could not be carried out in any other way, or would be carried out with unreasonable difficulties. 10. While secret surveillance measures were being used against the first applicant, on 27, 28 and 29 June and 2 July 2007 the authorities intercepted and recorded a number of his telephone conversations with the second and third applicants – who lived in the Netherlands at the time – in connection with drug trafficking.", "11. On 2 July 2007 the OSCOC requested that the order issued against A.J. and the fourth applicant on 4 May 2007 (see paragraph 7 above) be extended for another two months, stating that the measures carried out thus far indicated that A.J. and the fourth applicant continuously communicated regarding perpetrating the criminal offence proscribed by Article 173 § 3 of the Criminal Code. On the same day the investigating judge allowed the extension, deeming the application “well founded, because in this particular case, the investigation of these criminal offences could not be carried out by other means”.", "12. On 6 July 2007 the secret surveillance measures were suspended, since the applicants and several other persons had been arrested and a criminal complaint against them had been filed. 13. On 1 October 2007 the OSCOC indicted the applicants and several other persons in the Zagreb County Court on charges of drug trafficking under Article 173 § 3 of the Criminal Code. In particular, they were charged with associating in the territory of Croatia and the Netherlands from May to July 2007 for the purpose of continuously smuggling large amounts of cocaine from the Netherlands to Croatia, and selling those drugs in Croatian territory with a view to acquiring pecuniary gain.", "As to the fourth applicant, he was charged with, inter alia, selling cocaine to B.S. in May 2007 in Zagreb, after acquiring that drug from the first applicant. 14. In the course of the proceedings before the Zagreb County Court the applicants challenged the lawfulness of the secret surveillance, alleging that it had not been ordered in accordance with the relevant domestic law and that the evidence so obtained was not relevant or accurate, as nothing suggested that they had been involved in the alleged drug trafficking. 15.", "On 25 March 2008 the trial court dismissed the applicants’ complaints concerning the alleged unlawfulness of the secret surveillance orders as unfounded, and proceeded with the examination of the case. 16. The latter decision was confirmed by the Supreme Court (Vrhovni sud Republike Hrvatske) on 14 May 2008. The relevant statement of reasons given by the Supreme Court reads as follows: “... this second-instance court agrees with the first-instance court’s conclusion that evidence obtained by using an investigative measure ordered against a person in respect of whom there is a reasonable suspicion that he is committing, alone or jointly with others, one of the criminal offences proscribed under Article 181 of the Code of Criminal Procedure, can be used not only against [that person], but also against every other person caught participating in [that person’s] criminal activity, [when] the criminal activity of the other person amounts to the criminal offence proscribed under Article 181 of the Code of Criminal Procedure, but always on the condition that the other person has been caught acting together with the person against whom one of the measures under Article 180 § 1(1)-(6) has been lawfully issued. ...", "Section 22 of the Office for the Suppression of Corruption and Organised Crime Act (Zakon o Uredu za suzbijanje korupcije i organiziranog kriminaliteta, hereinafter ‘the OSCOC Act’) provides that in proceedings concerning criminal offences under section 21 of the OSCOC Act, the Code of Criminal Procedure and other general provisions of criminal procedure shall apply, unless the OSCOC Act provides otherwise. Section 42(1) of the OSCOC Act is an extension of section 41 of that Act. [Section41] provides that other measures provided for in that section may be ordered for criminal offences set out in that section, in addition to measures under Article 180 § 1 of the Code of Criminal Procedure. Therefore, the content of the cited provisions of the OSCOC Act, to which the appellants refer in their appeals, does not exclude the application of special measures under Article 180 § 1 of the Code of Criminal Procedure, but such measures are extended in respect of some criminal offences by the measures provided for under section 41 of the OSCOC Act. Consequently, in its application for special measures of inquiry into criminal offences proscribed by Article 173 § 3 of the Criminal Code in the specific case against the defendants, the OSCOC proposed the application of the provisions of Article 180 § 1 of the Code of Criminal Procedure which the court had applied when issuing the order ... of 1 June 2007.", "Therefore, since the OSCOC has jurisdiction over proceedings regarding the criminal offence under Article 173 § 3 of the Criminal Code and proposed ordering special measures of inquiry into such an offence under Article 180 § 1of the Code of Criminal Procedure, the court accepted the application, which is why the issued order is not unlawful. Furthermore, applying Article 180 § 1 of the Code of Criminal Procedure to the order at issue, even though daily reports and documentation regarding technical recordings drafted by the members of the police authorities who were implementing the ordered measures were not delivered to the investigating judge on a daily basis – the judge did not ask for this under Article 182a of the Code of Criminal Procedure, but this was done after the special measures had been implemented – this does not render the order in question unlawful pursuant to Article 9 §§ 1 and 2 of the Code of Criminal Procedure, nor does it make the material evidence obtained from the measures unlawful, contrary to the allegations in the defendants’ appeals. ... restricting the freedom and confidentiality of correspondence ... was necessary for conducting the criminal proceedings. It was not contrary to Article 8 of the European Convention on Human Rights and Fundamental Freedoms or contrary to the criteria set by the European Court of Human Rights, because it was based on the relevant provisions of the Code of Criminal Procedure, had a legitimate aim, and was necessary, taking into account all the specific circumstances involved in establishing the perpetrators of the criminal offence.” 17. At a hearing held on 15 December 2008 the trial court heard M.S., a witness called by the fourth applicant.", "M.S. stated that he had been friends with the fourth applicant, whom he had asked to watch over his son, B.S., who had been a drug addict. In May 2007 B.S. had gone to Zagreb to purchase an air-conditioning device. B.S.", "had subsequently told him that in Zagreb he had purchased drugs from some people. 18. At a hearing held on 30 January 2009 the trial court heard B.S., a witness called by the fourth applicant. B.S. stated that in May 2007 he had purchased cocaine from S.H., and not from the fourth applicant, and that this fact could be confirmed by A.P.", "and M.D., who had been with him on that day. The fourth applicant then asked to call A.P. and M.D., who he said would testify about the circumstances in which B.S. had purchased cocaine in May 2007. The trial court dismissed that proposal.", "19. On 4 February 2009 the Zagreb County Court found the applicants guilty as charged and sentenced the first applicant to ten years’ imprisonment, the second and the third applicants to six years’ imprisonment, and the fourth applicant to seven years’ imprisonment. In convicting them, the Zagreb County Court relied on the recordings obtained by secret surveillance, finding them lawful and credible. As to the fourth applicant, it explained that it had refused to hear A.P. and M.D.", "as witnesses since at that point it had already been established beyond doubt, on the basis of the results of the secret surveillance measures and the cocaine found on B.S., that B.S. had purchased the cocaine from the fourth applicant. 20. The applicants challenged the Zagreb County Court’s judgment by lodging appeals with the Supreme Court. They contended that the secret surveillance orders had lacked the relevant reasoning as to the lawfulness and necessity of such surveillance.", "Moreover, they contended that the procedure for supervising the execution of the secret surveillance orders, which in the case at hand had been based on the Code of Criminal Procedure, should have been based on special legislation concerning organised crime (the OSCOC Act). The OSCOC Act required the police to submit daily reports to the investigating judge concerning the execution of such orders, something which had not been done in their case. The applicants further challenged the findings which were based on the recordings obtained by secret surveillance. The second and third applicants also contended that the secret surveillance orders had not been issued in respect of them, and that the secret surveillance had been conducted outside Croatian territory in the absence of a request for international legal assistance in criminal matters. In their view, there was no provision for this in the relevant domestic law, and thus the secret surveillance carried out in respect of them had run counter to Article 36 of the Constitution and Article 8 of the Convention.", "The fourth applicant also complained that the trial court had failed to call two defence witnesses he had asked to be called (A.P. and M.D. ), who would have confirmed B.S.’ statement that he had not purchased cocaine from the fourth applicant, but from S.H. Lastly, the first applicant, who disputed his conviction and sentence, challenging all factual aspects of the case and alleging procedural errors in the trial, asked that his lawyer be allowed to attend the session of the appeal panel. 21.", "On 21 September 2009 the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) submitted a reasoned opinion proposing that the applicants’ appeals be dismissed. That opinion was not forwarded to the defence. 22. On 13 January 2010 the Supreme Court informed the parties that a session of the appeal panel would be held on 9 March 2010. The parties were invited to attend, but it was expressly stated that the presence of the accused, who were in pre-trial detention and had a lawyer, would not be ensured, and that there would be no order for them to be brought to court.", "23. On 9 March 2010 the Supreme Court held a session in the presence of the applicants’ lawyers and the Deputy State Attorney of the Republic of Croatia (Zamjenik Glavnog državnog odvjetnika Republike Hrvatske, hereinafter, “the Deputy State Attorney”). That court stated that it had decided that it would not be useful to have the accused, who were represented by lawyers, brought from pre-trial detention. The Deputy State Attorney stated that he confirmed the proposal submitted under Article 373 § 2 of the Code of Criminal Procedure (see paragraph 21 above and 33 below). The parties stated that they had no objections as to how the session had been conducted or the content of the record of the session.", "The record of the session was signed by the appeal panel president and the clerk. 24. On the same day the Supreme Court dismissed the applicants’ appeals and upheld their convictions. It held that all the secret surveillance orders had essentially provided sufficient reasoning. It explained that although the orders – apart from the first one issued against the fourth applicant – had been based on the Code of Criminal Procedure and not on the special legislation concerning organised crime (the OSCOC Act), that on its own did not render them unlawful.", "Section 41 and section 42(1) of the OSCOC Act provided for the possibility of ordering such measures. Also, the fact that the police had not submitted daily reports to the investigating judge concerning the execution of the orders did not render the secret surveillance orders unlawful, because a report had been submitted after the measures had been implemented. The court further held that the sovereignty of the Netherlands had not been violated by the interception of the second and third applicants’ telephone conversations, since the Croatian authorities had never issued a secret surveillance order against them. The secret surveillance orders had been lawfully issued in respect of several people in Croatia whom the second and third applicants – who had lived in the Netherlands at the time – had contacted. Since the second and third applicants had participated in the criminal activities of the persons under secret surveillance – activities which had amounted to the criminal offence proscribed under Article 181 of the Code of Criminal Procedure – such evidence (intercepted telephone conversations) could be used in the criminal proceedings against them.", "The Supreme Court also indicated that the trial court had correctly established the facts which were based on the applicants’ telephone conversations recorded by secret surveillance. 25. The applicants challenged those findings by lodging constitutional complaints with the Constitutional Court (Ustavni sud Republike Hrvatske). They reiterated their complaints concerning the secret surveillance and the use of evidence so obtained in the criminal proceedings against them. The first, second and third applicants contended that the reasoned opinion of the State Attorney’s Office of the Republic of Croatia submitted during the appeal proceedings had not been forwarded to the defence.", "In addition, the first applicant complained that even though the Supreme Court had examined a number of legal and factual issues, including the question of an appropriate sentence which he had raised in his appeal, he had not been invited to attend the session of the appeal panel. The fourth applicant also complained that the domestic courts had failed to call two defence witnesses he had wished to call. 26. On 9 January 2014 the Constitutional Court dismissed the applicants’ constitutional complaints, upholding the findings of the Supreme Court. As to the first, second and third applicants’ complaint concerning the reasoned opinion of the State Attorney’s Office of the Republic of Croatia not being forwarded to the defence, the Constitutional Court noted that at the session of the appeal panel the Deputy State Attorney had reiterated the arguments submitted in the opinion in question.", "The applicants’ lawyers had attended the session and had therefore had the opportunity to have knowledge of and comment on those submissions. As to the fourth applicant’s complaint that the trial court had refused to hear two witnesses whom he had wished to call, the Constitutional Court noted that the trial court had given reasons for doing so. 27. The decisions of the Constitutional Court were served on the lawyer representing the first, second and third applicants and the lawyer representing the fourth applicant on 21 and 24 February 2014 respectively. II.", "RELEVANT DOMESTIC LAW AND PRACTICE 28. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006) provides: Title thirteen (XIII) Criminal offences against the values of international law Abuse of Narcotic DrugsArticle 173 “ ... (2) Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or in some other way and without authorisation puts into circulation, substances or preparations which are by regulation declared to be narcotic drugs, shall be liable to a minimum sentence of three years’ imprisonment.” (3) If the criminal offence under paragraphs 1 and 2 of this Article was committed by a group or a criminal organisation, the perpetrator shall be liable to a minimum sentence of five years’ imprisonment, or life imprisonment. 29. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos.", "110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides: Article 182(4) “If, during surveillance and secret recording, information is noted which points to another criminal offence [proscribed under Article 181 of the Code of Criminal Procedure], that part of the recording shall be copied and delivered to the prosecutor.” 30. The relevant provisions of the OSCOC Act (Official Gazette nos. 88/2001, 12/2002, 33/2005 and 48/2005), as in force at the material time, read as follows: Section 21 “(1) The OSCOC acts as a prosecutor as regards the following criminal offences: ... 3. the abuse of narcotics under Article 173 § 3 of the Criminal Code; ...” Section 22 “In proceedings regarding the criminal offences referred to in section 21 of this Act, the Code of Criminal Procedure ... and other general provisions of criminal procedure shall apply, unless otherwise provided for by this Act.” Section 41 “(1) At the request of the Head [of the OSCOC], or proprio motu, the investigating judge may order the application of measures involving the supply of simulated professional services or the conclusion of simulated legal transactions, in addition to the measures provided for in Article 180 § 1 of the Code of Criminal Procedure, against the person suspected of preparing, alone or together with other persons, any of the criminal offences referred to in section 21 of this Act, and [where] the extent of the planned operations and connections among such persons indicate that they pose a serious threat to public order, if the police cannot detect, prevent or prove such criminal offences in any other manner, or if this would entail disproportionate difficulties. (2) A written reasoned order allowing the measure ... can be extended [for three months] after the expiry of three months if the circumstances learned of subsequently justify this. (3) A decision on [the extension] is issued by a panel under Article 20 § 2 of the Code on Criminal Procedure [a three-judge panel of the county court], taking into account in particular whether the purpose of the measure is proportionate to the degree of restriction of the [citizen’s] personal rights and whether the same result could be achieved by other, less restrictive, actions and measures.” Section 42 “(1) The measures referred to in section 41 of [this Act] shall be carried out by the police.", "While they are being implemented, the police shall prepare daily reports and documents related to the technical recording, which shall be forwarded to the investigating judge and the Head [of the OSCOC] at his or her request. (2) Upon the expiry of the use of the measures, the police shall submit a special report to the OSCOC and the investigating judge in which they shall indicate: 1. the time the use of the measure began and ended; 2. the number of activities undertaken by State officials in relation to the execution of the measure, and the nature of those activities; 3. the type and number of technical devices used; 4. the number and identity of persons in respect of whom the measure has been taken; 5. the type of offences under section 21(1) of this Act which were prevented by the use of the measure; 6. a succinct analysis of the question of whether the measure assisted in achieving or achieved the aim indicated in the order for its use. ... (8) Decisions in criminal proceedings cannot be based on information gathered through the implementation of measures undertaken in contravention of the provisions of subsections 1, 2, 4, and 5 of this section.” 31. The relevant part of the Supreme Court’s decision Kž-Us 84/16-4 of 11 July 2016 reads: “... As to the argument of the accused persons ... that their conversations were intercepted even though the investigating judge’s [secret surveillance] order had not been issued in respect of them, but in respect of [another person], and for an entirely different criminal activity ..., it should be noted that the first-instance court correctly differentiated between the lawful use of the so-called ‘accidental finding’ under Article 182(4) of the Code of Criminal Procedure, and Article 182(6) of that Code, which sets out situations in which the evidence so obtained is considered unlawful evidence. [The latter provision] is only applicable if the evidence was obtained by conducting the [secret surveillance] without the order of an investigating judge, or by acting contrary to Articles 180 and 182(2) of the Code of Criminal Procedure.", "... As to the so-called ‘accidental finding’ in respect of persons against whom [a secret surveillance] order has not been issued, but who have been caught participating in the criminal activity [amounting to] the criminal offence proscribed under Article 181 of the Code of Criminal Procedure, together with the person against whom the order has been issued, ... the Supreme Court expressed the view in several of its decisions (IV Kž 109/97; I Kž-411/03; I Kž-Us-59/14 and others) that the evidence thus obtained was not considered unlawful and its usage in criminal proceedings was allowed ...” 32. Other relevant domestic law and practice and international material concerning the use of secret surveillance measures are set out in the case of Dragojević v. Croatia (no. 68955/11, §§ 52-66, 15 January 2015). 33. The relevant domestic law concerning the forwarding of a reasoned submission of the State Attorney’s Office to the defence in the course of appeal proceedings and the presence of an applicant at a session of the appeal panel is set out in the cases of Zahirović v. Croatia, (no.", "58590/11, §§ 23 and 25, 25 April 2013) and Lonić v. Croatia, (no. 8067/12, §§ 36 and 37, 4 December 2014). THE LAW I. JOINDER OF THE APPLICATIONS 34. Given their similar factual and legal background, the Court decides that the four applications should be joined under Rule 42 § 1 of the Rules of Court. II.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicants complained that they had been subjected to secret surveillance measures in violation of the guarantees of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 36.", "The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1.", "The parties’ arguments 37. The applicants contended that the secret surveillance carried out in respect of them had been unlawful because it had not been based on orders by the investigating judge containing proper reasoning. They also argued that the domestic authorities had failed to demonstrate that the interference with their right to respect for their private life and correspondence had been justified and necessary, as required under Article 8 of the Convention. 38. The applicants further contended that the secret surveillance orders against them (save for the first one issued against the fourth applicant) had been based on the Code of Criminal Procedure instead of the special legislation concerning organised crime (the OSCOC Act).", "The latter provided for a stricter procedure for supervising the execution of secret surveillance orders, in that the police were required to submit daily reports to the investigating judge, something which had not been done in their case. Pursuant to section 42(8) of the OSCOC Act, the decisions in the criminal proceedings against them could not have been based on the information thus obtained. 39. The second and third applicants also complained about the secret surveillance carried out abroad in the absence of a request for international legal assistance in criminal matters and the fact that the results of secret surveillance ordered against third parties had been used in the criminal proceedings against them. 40.", "The Government accepted that there had been an interference with the applicants’ rights under Article 8 of the Convention. However, they considered that such interference had been lawful and justified. Referring to the Court’s findings in the Dragojević case (cited above), the Government argued that the investigating judge’s orders contained detailed reasoning regarding the existence of “grounds for suspicion” in respect of a criminal offence, as well as reasoning as to why an effective inquiry could not otherwise be achieved. The interference had pursued the legitimate aim of investigating and prosecuting the crime of drug trafficking, and had been proportionate to the circumstances, the gravity of the offence at issue and the applicants’ criminal activity. 41.", "As to the complaint about the procedure for supervising the execution of the secret surveillance orders, the Government submitted that all the applicants’ complaints in that respect had been thoroughly addressed by the domestic courts, whose explanations had been neither illogical nor arbitrary. As to the second and third applicants’ complaints that the results of secret surveillance ordered against third parties had been used in the criminal proceedings against them, the Government relied on the well‑established practice of the domestic courts in that regard, which, under certain conditions, allowed evidence so obtained to be used in criminal proceedings (see paragraph 31 above). 2. The Court’s assessment 42. The Court refers to the general principles concerning the use of secret surveillance measures set out in the Dragojević judgment (cited above, §§ 78-84, 86-89; see also Bašić v. Croatia, no.", "22251/13, § 32, 25 October 2016, and Matanović v. Croatia, no. 2742/12, § 112, 4 April 2017). It notes that there is no dispute between the parties that tapping the applicants’ telephones and covertly monitoring the first and fourth applicants constituted an interference with their right to respect for “private life” and “correspondence” guaranteed under Article 8 of the Convention (see paragraph 40 above). The Court must assess whether the interference was “in accordance with the law” and “necessary”. (a) Whether the secret surveillance orders contained adequate reasoning 43.", "As to the applicants’ complaint that the secret surveillance orders against them were not properly reasoned (see paragraph 37 above), the Court found in the Dragojević case (cited above, §§ 90-101) that the lack of reasoning underlying the investigating judge’s order, accompanied by the domestic courts’ practice of circumventing such a lack of reasoning by retrospectively justifying the use of secret surveillance, was not in compliance with the relevant domestic law and therefore did not, in practice, secure adequate safeguards against various possible abuses. The Court thus considered that such practices were not compatible with the requirement of lawfulness, nor were they sufficient to keep the interference with an applicant’s right to respect for his private life and correspondence to what was “necessary in a democratic society” (see also Bašić, cited above, §§ 33-34, and Matanović, cited above, § 114). 44. The Court’s task is to examine the following orders issued in the present case: the order issued on 4 May 2007 to carry out secret surveillance in respect of the fourth applicant (see paragraph 7 above); the orders issued on 1 and 15 June 2007 to carry out secret surveillance in respect of the first and fourth applicants (see paragraphs 8 and 9 above); and the order of 2 July 2007 extending the secret surveillance order of 4 May 2007 in respect of the fourth applicant (see paragraph 11 above). 45.", "As to the secret surveillance order issued on 4 May 2007 in respect of the fourth applicant (see paragraph 7 above), and the order of 2 July 2007 extending the secret surveillance order of 4 May 2007 for another two months (see paragraph 11 above), the Court notes that, as in the Dragojević case, they were essentially based on a statement referring to the existence of the competent prosecutor’s request for the use of secret surveillance and the statutory phrase that “the investigation could not be conducted by other means”. They did not, however, provide adequate reasoning as to the particular circumstances of the case, and in particular reasons why the investigation could not be conducted by other, less intrusive, means (see also Roman Zakharov v. Russia [GC], no. 47143/06, § 260, ECHR 2015). 46. The Court therefore finds that the same considerations which arose in the Dragojević case are applicable to the situation at hand.", "47. There has therefore been a violation of Article 8 of the Convention in respect of the fourth applicant on that account. 48. As to the secret surveillance orders issued against the first and fourth applicants on 1 and 15 June 2007 (see paragraphs 8 and 9 above), the Court firstly notes that even though these orders were not issued in respect of the second and third applicants, their implementation led to those applicants’ telephone conversations being intercepted and recorded (see paragraph 10 above), and consequently to evidence thus obtained being used in the criminal proceedings against them. The assessment of the complaints in paragraphs 49-61 below thus applies to the second and third applicants as well (see Lambert v. France, 24 August 1998, § 21, Reports of Judgments and Decisions 1998‑V).", "49. The Court observes that unlike in the cases of Dragojević, Bašić, and Matanović, in the case at hand the investigating judge’s order of 1 June 2007 did not include only the statutory phrase that “the investigation could not be conducted by other means, or would be extremely difficult”. That order provided reasons based on the specific facts of the case and the particular circumstances indicating probable cause for believing that the offence had been committed by the first and fourth applicants and that the investigation could not be conducted by other, less intrusive, means (see paragraph 8 above and compare Ringwald v. Croatia (dec.), nos. 14590/15 and 25405/15, § 34, 22 January 2019). Likewise, the investigating judge’s order of 15 June 2007 provided reasons based on the specific facts of the case for suspending the surveillance measures regarding the first applicant’s previous telephone numbers and including new telephone numbers, as well as reasons as to why the investigation could not be conducted by other, less intrusive, means (see paragraph 9 above).", "50. The Court therefore finds no violation in respect of the applicants on that account. (b) Whether the domestic authorities applied the correct legislation in implementing the secret surveillance measures 51. As to the applicants’ complaint that the domestic authorities applied general provisions in implementing the measures in their case, instead of special legislation requiring stricter judicial control over their implementation (see paragraph 38 above), the Court notes that the complaint relates to the secret surveillance orders issued and extended on the basis of the OSCOC’s request on 1 and 15 June and 2 July 2007 (see paragraphs 8-11 above). 52.", "The central question for the Court to determine is thus whether the relevant domestic law, including the way in which it was interpreted by the domestic authorities, indicated with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities, and in particular whether the domestic system of secret surveillance, as applied by the domestic authorities, afforded adequate safeguards against possible abuse. Since the existence of adequate safeguards against abuse is a matter closely related to the question of whether the “necessity” test was complied with in this case, the Court will address both the requirement that the interference be “in accordance with the law” and the requirement that it be “necessary” (see Dragojević, cited above, § 89, with further references). 53. The Court notes that under the domestic law the use of secret surveillance measures is regulated by the Code of Criminal Procedure and the OSCOC Act, the latter being the lex specialis on the matter. 54.", "The Court observes that even though the two legal instruments are to a certain extent identical, the OSCOC Act sets out stricter criteria for authorising, extending and supervising the implementation of secret surveillance measures. In particular, the OSCOC Act provides for the possibility of applying further measures in addition to those under Article 180 § 1 of the Code of Criminal Procedure (supplying simulated professional services or concluding simulated legal transactions, see paragraph 30 above, section 41(1)). Under the Code of Criminal Procedure, measures may be authorised for an initial period of four months (see paragraph 32 above, Article 182(2) of the Code of Criminal Procedure), whereas under the OSCOC Act they may be authorised for an initial period of three months (see paragraph 30 above, section 41(2) and (3)). Under the Code of Criminal Procedure, the investigating judge is competent to extend such a measure, and only in the event of a disagreement between the investigating judge and the State Attorney does a three-judge panel of the county court have competence to extend it, whereas under the OSCOC Act, only a three-judge panel of the county court has competence to do so (ibid.). Under the Code of Criminal Procedure, the measure can be extended on the basis of an application by the competent prosecutor, whereas under the OSCOC Act a further requirement is necessary – that the circumstances learned of subsequently justify such an extension (ibid.).", "Under the Code of Criminal Procedure, the police are obliged to submit to the investigating judge or the State Attorney’s Office daily reports and other relevant documentation only on the basis of special requests by those persons (see paragraph 32 above, Article 182a(1) of the Code of Criminal Procedure). Under the OSCOC Act, such an obligation towards the investigating judge exists independently of such requests (see paragraph 30 above, section 42(1)). The OSCOC Act expressly provides that decisions in criminal proceedings cannot be based on information gathered in breach of the obligation to submit daily reports to the investigating judge (see paragraph 30 above, section 42(8)). The Code of Criminal Procedure does not contain such a provision. 55.", "The Court observes that in addressing the applicants’ arguments, the domestic courts explained that no issue arose regarding the fact that secret surveillance measures against them had been based on the Code of Criminal Procedure instead of the OSCOC Act (see paragraphs 16 and 24 above), since secret surveillance measures under Article 180 § 1 of the Code of Criminal Procedure may be ordered for criminal offences under the OSCOC’s jurisdiction, such as drug trafficking under Article 173(3) of the Criminal Code, which the applicants were suspected of (see paragraph 30 above, section 41(1) of the OSCOC Act). 56. The domestic courts further held that the fact that the police had not submitted reports and documentation regarding technical recordings to the investigating judge on a daily basis, did not render the order or the evidence thus obtained unlawful, as a report had been submitted after the measures had been implemented (see paragraphs 16 and 24 above). The Government reiterated the latter arguments before the Court (see paragraph 41 above). 57.", "It is not in principle for the Court to interfere with the domestic courts’ right to determine the procedure for implementing secret surveillance measures. It is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law, even in those fields where the Convention refers to the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Brežec v. Croatia, no. 7177/10, § 42, 18 July 2013). 58. In the Court’s view, the domestic courts’ reasoning that the secret surveillance measures under Article 180 § 1 of the Code of Criminal Procedure – such as telephone tapping and the covert monitoring of persons in relation to criminal offences under the OSCOC’s jurisdiction – could be implemented on the basis of the Code of Criminal Procedure does not appear arbitrary or manifestly unreasonable.", "59. The relevant domestic law provides that the special OSCOC provisions apply whenever they regulate a matter differently from the Code of Criminal Procedure (see paragraph 30, section 22 of the OSCOC Act and paragraph 31 above). For criminal offences under the OSCOC’s jurisdiction, this is not the case as regards secret surveillance measures under Article 180 § 1 of the Code of Criminal Procedure. This has been explained by the domestic courts (see paragraphs 16, 19, 24 and 26 above). 60.", "In these circumstances the Court finds that the relevant domestic law, as interpreted and applied by the competent courts in the present case, provided reasonable clarity regarding the scope and manner in which the discretion conferred on the public authorities was exercised, and that in practice adequate safeguards were secured against possible abuse. Accordingly, the procedure for ordering and supervising the implementation of the interception of the applicants’ telephone communications and the first and fourth applicants’ covert monitoring was shown to have complied with the requirements of lawfulness, and was adequate to keep the interference with the applicants’ right to respect for their private life and correspondence to what was “necessary in a democratic society”. 61. The Court therefore concludes that there has been no violation of Article 8 of the Convention in respect of the applicants as regards the fact that in implementing the secret surveillance measures of 1 and 15 June and 2 July 2007, the domestic authorities applied the Code of Criminal Procedure (see paragraphs 8-11 above). (c) Whether the secret surveillance carried out in respect of the second and third applicants was lawful 62.", "It remains for the Court to address the second and third applicants’ complaint that the secret surveillance carried out while they were abroad in the absence of a request for international legal assistance in criminal matters was unlawful, and that the results of secret surveillance ordered against third parties were used in the criminal proceedings against them (see paragraph 39 above). 63. The Court notes that in the case of Lambert, cited above, it did not find a violation of Article 8 of the Convention on the grounds that the applicant’s telephone conversations had been intercepted on the basis of secret surveillance measures ordered in respect of another person and not him. Rather, it found a violation of Article 8 because, in that case, the applicant had not enjoyed the effective protection of national law which would have been capable of restricting the interference in question to what was “necessary in a democratic society”, since he could not challenge the telephone tapping to which he had been made subject (ibid., §§ 21-41). 64.", "In the present case, the Court has already found that the secret surveillance measures issued in respect of the first applicant, in the course of which the second and third applicants’ telephone conversations were intercepted, were “in accordance with the law” and “necessary” within the meaning of Article 8 of the Convention (see paragraphs 48-61 above). 65. Further to this, unlike in the case of Lambert, in the case at hand, the second and third applicants were able to effectively challenge the telephone tapping to which they had been made subject. Indeed, the complaints which they brought throughout the criminal proceedings were not dismissed by the domestic courts on the grounds that they had no standing to challenge the lawfulness and necessity of the secret surveillance measures issued against third parties and not them (see, a contrario, Lambert, cited above, § 14). Their complaints – that the secret surveillance orders in question had lacked reasons; that the procedure for supervising the execution of those orders had been unlawful; and that the orders had not been issued in respect of them and had been implemented against them in the Netherlands, in the absence of a request for international assistance – were examined by the domestic courts, which deemed the complaints unfounded (see paragraphs 16, 19, 24 and 26 above).", "66. The Court notes that the Croatian authorities never issued a secret surveillance order in respect of the second and third applicants in the Netherlands (see paragraph 24 above). Their telephone conversations were intercepted and recorded on the basis of the secret surveillance orders lawfully issued against the first applicant, whom they contacted. Since they participated in the criminal activities of the first applicant, who was under secret surveillance, activities which amounted to the criminal offence proscribed under Article 181 of the Code of Criminal Procedure, the domestic courts deemed that the evidence so obtained could be used in the criminal proceedings against them (see paragraph 24 above). That conclusion is based on the relevant domestic law and practice concerning the so-called “accidental finding” (see paragraphs 29, 31 and 32 above).", "67. In the above circumstances, the second and third applicants’ complaint about the secret surveillance carried out abroad in the absence of a request for international legal assistance in criminal matters and the use of the results of secret surveillance ordered against third parties in the criminal proceedings against them must be dismissed. 68. Accordingly, the Court finds that there has been no violation of Article 8 of the Convention in respect of the second and third applicants on that account. (d) Conclusion 69.", "The Court finds that there has been a violation of Article 8 of the Convention in respect of the fourth applicant as regards the secret surveillance order issued on 4 May 2007 and extended on 2 July 2007, for lack of adequate reasoning. It finds that there has been no violation of that Article in respect of the applicants as regards the remainder of their complaints concerning the secret surveillance measures. III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) AND (d) OF THE CONVENTION 70. The applicants complained that they had not had a fair trial.", "They alleged in particular: (i) that evidence unlawfully obtained by means of secret surveillance had been used in the criminal proceedings against them (all four applicants); (ii) that the principle of equality of arms had been violated in that a submission of the State Attorney’s Office of the Republic of Croatia to the Supreme Court had not been forwarded to the defence (the first, second and third applicants); (iii) that the first applicant had not been allowed to be present at the session of the appeal panel; (iv) that the domestic courts had failed to call two defence witnesses (the fourth applicant). 71. They relied on Article 6 §§ 1 and 3 (c) and (d) of the Convention, which, in so far as relevant, reads: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal established by law. ... 3.", "Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” A. Alleged use of evidence obtained by means of unlawful secret surveillance 1. The parties’ arguments 72. The Government pointed out that the applicants had been given adequate opportunity to challenge the evidence at issue and to oppose its use in the proceedings, and to ask for further evidence to be examined at the trial. In the Government’s view, all their arguments in this respect had been duly examined and addressed by the domestic courts, including the Supreme Court and the Constitutional Court.", "Moreover, the Government considered that even though the disputed evidence had been important for the applicants’ conviction, it had been concordant with the rest of the evidence against them. 73. The applicants contended that their conviction had been based solely on evidence obtained by unlawful and unjustified secret surveillance. The surveillance had been based on the Code of Criminal Procedure instead of on the special legislation concerning organised crime, which required stricter judicial control over the implementation of such surveillance. Information thus obtained should not have been used in the criminal proceedings against them.", "The second and third applicants also raised an issue with regard to the unlawfulness of secret surveillance abroad which had been conducted in the absence of a request for international legal assistance in criminal matters, and the possibility to use the results of secret surveillance ordered against a third party rather than against them in the criminal proceedings against them. 74. In the applicants’ view, the domestic courts’ reliance on such evidence had not been accompanied by adequate procedural safeguards guaranteeing the fairness of the proceedings. Their doubts as to the accuracy of the recordings had never been properly addressed by the domestic courts. 2.", "The Court’s assessment 75. The general principles for the Court’s assessment of whether or not the use of evidence obtained by secret surveillance runs counter to the requirements of a fair trial under Article 6 § 1 of the Convention are set out in the Dragojević case (cited above, §§ 127-130). 76. In this connection, the Court reiterates that it is not its role to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether an applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (ibid., § 128).", "77. The Court found no violation of Article 8 of the Convention against the applicants as regards the secret surveillance measures issued on 1 and 15 June 2007 (see paragraphs 48-68 above). That implies that secret surveillance measures in question and the evidence thus obtained were not unlawful, since a requirement that any interference with an applicant’s rights protected under Article 8 has to be based in law is inherent in the guarantees of that Article. The Court further finds that the applicants’ allegations in that respect do not disclose any appearance of a violation of the fair trial guarantees, within the meaning of Article 6 § 1 of the Convention (see Ringwald, cited above, § 41). 78.", "It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 79. The Court found a breach of Article 8 of the Convention against the fourth applicant as regards the secret surveillance order issued on 4 May 2007 and extended on 2 July 2007 (see paragraphs 45-47 above). 80. The first question to be examined in this context is whether the fourth applicant was given the opportunity to challenge the authenticity of the evidence and oppose its use.", "In this connection, the Court notes that the fourth applicant was given, and effectively used, such an opportunity during the proceedings, in his appeals (see paragraph 14-16 and 20 above) and in his constitutional complaint (see paragraph 25 above). The domestic courts examined the fourth applicant’s arguments on the merits and provided reasons for their decisions (see paragraphs 15, 16, 19, 24 and 26 above). The fact that the fourth applicant was unsuccessful at each step does not alter the fact that he had an effective opportunity to challenge the evidence and oppose its use (see Schenk v. Switzerland, 12 July 1988, § 47, Series A no. 140, and Khan v. the United Kingdom, no. 35394/97, § 38, ECHR 2000‑V).", "81. With regard to the quality of the evidence in question, which is a further element for the Court’s consideration, the Court notes that the fourth applicant’s main objection to the use of the evidence obtained by means of secret surveillance concerned the formal use of such information as evidence during the proceedings. All the defence’s doubts as to the accuracy of the recordings were duly examined and addressed by the trial court (see paragraph 19 above). Those findings were also examined and confirmed by the Supreme Court, which considered that all the relevant circumstances of the case had been properly established by the trial court (see paragraph 24 above). 82.", "Given that it is primarily for the domestic courts to decide on the admissibility of evidence, its relevance and the weight to be given to it in reaching a judgment (see, amongst many others, Fomin v. Moldova, no. 36755/06, § 30, 11 October 2011), the Court finds nothing here that casts any doubt on the reliability and accuracy of the evidence in question. 83. Lastly, as regards the importance of the disputed evidence for the fourth applicant’s conviction, the Court notes that the contested material was the decisive evidence on the basis of which criminal proceedings were instituted against him, and likewise it was decisive for his conviction (see paragraph 19 above). However, this element is not the determining factor in the Court’s assessment of the fairness of the proceedings taken as a whole (see Khan, cited above, § 37).", "The Court reiterates that the relevance of the existence of evidence other than evidence which is contested will depend on the circumstances of the particular case. In the present circumstances, where the substance of the recordings provided accurate and reliable evidence, the need for supporting evidence was correspondingly weaker (see Prade v. Germany, no. 7215/10, § 40, 3 March 2016). 84. In view of the above, the Court considers that there is nothing to substantiate the allegation that the fourth applicant’s defence rights were not properly complied with in respect of the evidence adduced, or that its evaluation by the domestic courts was arbitrary (see Bykov v. Russia [GC], no.", "4378/02, § 98, 10 March 2009). In conclusion, the Court finds that the use of the disputed recordings in evidence did not as such deprive the fourth applicant of a fair trial. 85. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B.", "Alleged violation of the principle of equality of arms as regards the submission of the State Attorney’s Office of the Republic of Croatia 1. Admissibility 86. 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.", "2. Merits (a) The parties’ arguments 87. The first, second and third applicants submitted that the prosecution’s submission of 21 September 2009 to the Supreme Court had never been forwarded to the defence. At the session of the appeal panel their lawyers had learned of the existence of the submission but not of its content. In any event, it had not been sufficient that their lawyers had learned of it; the applicants themselves should have been made aware of it, because it had been for them to instruct their lawyers as to which actions to take in that respect.", "88. The applicants had not been present in person at the session, and it had been pointless to ask for it to be adjourned because the Supreme Court had been aware of the submission in question from the prosecution and had still held that the applicants’ presence was not expedient and would not be ensured. 89. As to the statement in the record of the session of the appeal panel that the parties had not had any objections, the applicants contended that the record had not been read out to the parties and had not been signed by them. 90.", "The Government submitted that the defence had been aware of the existence of the prosecution’s submission of 21 September 2009; the applicants’ lawyers had learned of its existence at the session of the appeal panel which they had attended. They could therefore have asked for the submission to be read out during the session, or sought an adjournment in order to gain more time to examine it. However, they had done nothing of the sort. (b) The Court’s assessment 91. In the cases of Zahirović v. Croatia, (no.", "58590/11, §§ 44-50, 25 April 2013) and Lonić v. Croatia, (no. 8067/12, §§ 83-86, 4 December 2014), the Court found, after a detailed examination of the Croatian system of appeal proceedings, a violation of the principle of equality of arms and the right to adversarial proceedings under Article 6 § 1 of the Convention on the grounds that a submission of the State Attorney’s Office of the Republic of Croatia to the Supreme Court had not been forwarded to the defence. It held that it did not need to determine whether the omission to forward the relevant document had been prejudicial to the applicant; the existence of a violation was conceivable even in the absence of prejudice (see Zahirović, cited above, §§ 48 and 49, and Lonić, cited above, § 84). 92. The violation originated in a situation where, under the relevant domestic law, the courts were under no obligation to forward the opinion of the competent State Attorney to the defence (see paragraph 33 above, Article 373 of the 1997 Code of Criminal Procedure).", "93. The Court notes that the amendments made to the relevant domestic law in the wake of the Zahirović judgment excluded the possibility for the competent State Attorney to submit an opinion after the examination of a case during the appeal proceedings. The issues of inequality between the parties and lack of an adversarial trial in that respect were therefore removed (see paragraph 33 above, amendments to the 2008 Code of Criminal Procedure of 15 December 2013). However, in the proceedings complained of by the applicants, the previous legislation and practice was applicable. 94.", "In the present case, whilst admitting that the prosecution’s submission had not been forwarded to the applicants, the Government contended that the principle of adversarial trial had been complied with, since the applicants’ lawyers had learned about the prosecution’s submission at the session of the appeal panel. They could therefore have asked for the submission to be read out or for the session to be adjourned, and could have responded to the submission before the second-instance judgment had been given (see, a contrario, Zahirović, cited above, § 41, and paragraph 91 above). However, they had done nothing of the sort. 95. The Court is not convinced that the Government’s argument should lead it to come to a different conclusion than that in Zahirović.", "96. The Court notes that at the session of the appeal panel held on 9 March 2010, the Deputy State Attorney indeed just confirmed the proposal submitted in the reasoned opinion of 21 September 2009 (see paragraphs 23-24 above). The applicants’ lawyers attended the session and therefore the defence learned of the existence of the prosecution’s submission at that time. The present case thus differs from cases in which the applicants had no knowledge of the other party’s submissions before a decision was given (see, for example, Brandstetter v. Austria, 28 August 1991, § 67, Series A no. 211; Bulut v. Austria, 22 February 1996, § 49, Reports 1996‑II; and Josef Fischer v. Austria, no.", "33382/96, § 21, 17 January 2002). 97. However, the issue to be examined is whether in the present case the defence was afforded an effective opportunity to familiarise itself with the prosecution’s submission, as well as an opportunity to comment on its content in an appropriate form and within an appropriate time-frame before the appellate judgment was given. What is particularly at stake here is the applicants’ confidence in the workings of criminal justice, which is based on, inter alia, the assumption that they would be afforded the opportunity to express their views on every document in the file concerning their appeal against the first-instance judgment. 98.", "The Court reiterates that it is for the domestic authorities to ensure compliance with the principle of adversarial trial. It notes that under the relevant domestic law applicable at the time, there was no obligation to forward the opinion of the competent State Attorney to the defence. In the present case it is undisputed that the defence was not served with the prosecution’s submission of 21 September 2009. The Court further notes that under the relevant domestic law applicable at the time, the accused and his or her defence counsel were invited to the session of the appeal panel if they so requested or if the panel deemed that their presence was useful for the clarification of the case. If the accused was in pre-trial detention and had a defence lawyer, his or her presence was ensured only if the panel considered it expedient (see paragraph 33 above, Article 374 of the 2007 Code of Criminal Procedure).", "In the present case the Supreme Court, which had been aware of the prosecution’s submission in question, did not invite the applicants to the session, only their lawyers.. The applicants were in pre‑trial detention and the court did not deem it expedient to summon them (see paragraph 22 above). 99. The Court notes that the prosecution’s submission in question constituted a reasoned opinion on the merits of the applicants’ appeals against the first-instance judgment, manifestly aiming to influence the decision of the Supreme Court by calling for the appeals to be dismissed. Thus, having regard to the nature of the issues to be decided by the Supreme Court, that is, questions of both fact and law, the applicants had a clear interest in receiving a copy of the prosecution’s written submission (see Zahirović, cited above, § 47, and Borgers v. Belgium, 30 October 1991, § 27, Series A no.", "214 B). 100. The Court is of the view that rendering the knowledge that observations have been filed by the prosecution entirely dependent on the presence of the defence at the session of the appeal panel amounted to imposing a disproportionate burden on the defence and did not necessarily guarantee a real opportunity to comment on the observations. In other words, it did not guarantee an unconditional right of the defence to have knowledge of, and to comment on, the prosecution’s submission in the appeal proceedings (see, mutatis mutandis, Brandstetter, cited above, § 67; Göç v. Turkey [GC], no. 36590/97, § 57, ECHR 2002 V; and Kliba v. Croatia [Committee], no.", "30375/16, § 26, 18 April 2019). 101. In view of these findings, and having regard to its case-law as set out in the Zahirović and Lonić cases (cited above), the Court finds that there has been a violation of Article 6 § 1 of the Convention in respect of the first, second and third applicants. C. The first applicant’s absence from the session of the appeal panel 1. Admissibility 102.", "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. 2. Merits (a) The parties’ arguments 103.", "The first applicant submitted that his presence at the session had been necessary because the Supreme Court had been called upon to examine all the factual and legal circumstances of the case. Moreover, as the prosecution had been summoned to the session, he had been placed in a disadvantageous position vis-à-vis the opposing party. He further contended that in his appeal he had not asked to attend the session of the appeal panel in person because the practice of the domestic courts had been that an accused who was in detention at the time of a session was not allowed to attend it. Such a request would therefore have been devoid of any purpose. 104.", "The Government contended that the first applicant had never asked to attend the session of the appeal panel in person. In his appeal, he had only asked that his lawyer be invited, a request which the Supreme Court had granted. Moreover, the issues to be decided by the Supreme Court had been of a strictly legal nature, and the applicant’s attendance in person had not been necessary. (b) The Court’s assessment 105. In the cases of Zahirović (cited above, §§ 58-64) and Lonić (cited above, §§ 94-102), the Court found, after a detailed examination of the Croatian system of appeal proceedings, that when an appeal court was called upon to make a full assessment of an applicant’s guilt or innocence regarding the charges against him or her, in view of not only the arguments he or she had adduced before the first-instance court, but also the arguments concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly, this − as a matter of fairness − required the applicant’s presence at a session of the appeal panel.", "Moreover, in the case of Lonić (cited above, § 100), the Court considered it irrelevant that the appeal against the first‑instance judgment had been lodged only by the applicant, since that had not affected the principal question brought before the second-instance court, namely whether the applicant was guilty or innocent, an issue which, in order for the trial to be fair, had required the applicant’s presence at the session of the appeal panel. 106. In the present case, the Court notes that in his appeal the first applicant contested his conviction and sentence on both factual and legal grounds (see paragraph 20 above). The Supreme Court was therefore called upon to make a full assessment of the first applicant’s guilt or innocence in respect of the charges against him in the light of not only the arguments he had adduced before the first-instance court, but also those concerning the alleged failures of that court to establish all the relevant facts and to apply the relevant substantive and procedural rules correctly (see Lonić, cited above, § 99, compare Abdulgadirov v. Azerbaijan, no. 24510/06, § 42, 20 June 2013, and Kozlitin v. Russia, no.", "17092/04, § 63, 14 November 2013; and contrast Fejde v. Sweden, 29 October 1991, § 33, Series A no. 212‑C, and Hermi v. Italy [GC], no. 18114/02, § 85, ECHR 2006‑XII). However, contrary to the requirements of the above case-law, the Supreme Court decided that the first applicant’s presence was not expedient (see paragraphs 22 and 23 above). 107.", "The Court notes that unlike in the cases of Zahirović and Lonić, the first applicant in the present case did not ask to attend the session in person, only that his lawyer be invited, a request which was granted (see paragraph 20 above; see Zahirović, cited above, § 20, and Lonić, cited above, § 9; see also Arps v. Croatia, no. 23444/12, § 8, 25 October 2016). The first applicant explained that he had done so because, in accordance with the domestic courts’ practice, an accused who was in detention at the time of a session was not allowed to attend it (see paragraph 103 above). 108. The Court notes that under the domestic law in force at the time, if an accused was in detention, the president of the appeal panel might ensure his or her presence only if he or she considered it to be expedient (see paragraph 33 above; Article 374 § 2 of the Code of Criminal Procedure).", "In the present case, upon informing the parties that a session of the appeal panel would be held, the Supreme Court expressly stated that the presence of the accused, who were in pre-trial detention and who had a lawyer, would not be ensured, and that there would be no order for them to be brought to court (see paragraph 22 above). In such circumstances, the fact that the applicant did not ask to attend the session in person cannot be held against him. Indeed, his attendance at the session was not refused because he had failed to submit such a request, but because the Supreme Court held that his presence was not expedient (compare Zahirović, cited above, § 20). 109. Accordingly, in view of these findings, having regard to its case‑law as set out in the Zahirović and Lonić cases (cited above), the Court finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first applicant.", "D. Failure of the domestic courts to call two defence witnesses 1. Admissibility 110. 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.", "2. Merits (a) The parties’ arguments 111. The fourth applicant complained that he had not been able to obtain the attendance of witnesses on his behalf under the same conditions as the prosecution, as the domestic courts had failed to call A.P. and M.D., witnesses who would have testified as to the matter of B.S. not buying the cocaine from him, but from another person.", "112. The Government contended that the trial court had given the fourth applicant a proper opportunity to put forward his defence. After hearing the two witnesses he had called, it had refused to hear A.P. and M.D. as witnesses, providing sufficient reasons for that decision.", "(b) The Court’s assessment (i) General principles 113. The general principles concerning the examination of defence witnesses under Article 6 §§ 1 and 3 (d) of the Convention have recently been clarified in the case of Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 139-168, 18 December 2018). In particular, the Court formulated the following three-pronged test for cases where a request for the examination of a witness on behalf of the accused has been made in accordance with domestic law: (1) Whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation? (2) Whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial?", "(3) Whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings? 114. In the Murtazaliyeva case, the Court provided guidance for applying the test in future cases (ibid., §§ 160-168). (ii) Application of the principles to the present case (α) Whether the request for A.P. and M.D.", "to be examined as witnesses was sufficiently reasoned and relevant to the subject matter of the accusation 115. The Court notes that, in the proceedings in question, the fourth applicant was accused of, inter alia, selling cocaine to B.S. in May 2007 in Zagreb, after acquiring that drug from the first applicant (see paragraph 13 above). At the hearing held on 30 January 2009 the trial court heard B.S., a witness called by the fourth applicant, who stated that in May 2007 he had purchased cocaine from S.H., and not from the fourth applicant, and that this fact could be confirmed by A.P. and M.D., who had been with him on that day.", "The fourth applicant then asked to call A.P. and M.D., who he said would testify about the circumstances in which B.S. had purchased cocaine in May 2007 (see paragraph 18 above). In these circumstances, the Court accepts that the request for A.P. and M.D.", "to be examined as witnesses was sufficiently reasoned, and that the testimony of those two witnesses was reasonably expected to strengthen the position of the defence. (β) Whether the domestic courts considered the relevance of any testimony from A.P. and M.D. and provided sufficient reasons for their decision not to examine them at trial 116. The Court notes that the trial court examined the circumstances as to which A.P.", "and M.D. could testify, namely the matter of whether B.S. had bought drugs from the fourth applicant or from another person. After having already heard two witnesses called by the fourth applicant in relation to that matter (M.S. and B.S.", "), the trial court considered that the evidence of two other persons, A.P. and M.D., could not change its conclusion that the fourth applicant had sold drugs to B.S. This fact was established by the transcripts of the surveillance of the telephone conversations, as well by the drugs found on B.S. (see paragraphs 18 and 19 above). In the Court’s view, the reasons given by the trial court were appropriate in the circumstances of the case and were adequate, in terms of their scope and level of detail, with regard to the reasons advanced by the defence.", "(γ) Whether the domestic courts’ decision not to examine A.P. and M.D. undermined the overall fairness of the proceedings 117. In view of the principles established in its case-law and above findings, the Court concludes that it cannot be said that the failure to examine the above-mentioned defence witnesses prejudiced the fairness of the proceedings (compare Gregačević v. Croatia, no. 58331/09, § 64, 10 July 2012).", "The fourth applicant’s conviction for selling cocaine to B.S. in May 2007 in Zagreb was based on the transcripts of the surveillance of the telephone conversations and the drugs found on B.S. (see paragraph 19 above). The fourth applicant’s complaint amounts to a mere disagreement with the domestic courts’ assessment of the evidence, and the Court does not find that assessment arbitrary or manifestly unreasonable. 118.", "The fourth applicant, represented by a lawyer, was able to conduct his defence effectively, comment without hindrance on the incriminating evidence, adduce evidence he considered relevant, and present his account of the events to the domestic courts. (δ) Conclusion 119. Accordingly, being mindful that its role is not to give a ruling as to whether the statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see Topić v. Croatia, no. 51355/10, § 40, 10 October 2013), the Court finds that there has been no violation of the fourth applicant’s rights under Article 6 §§ 1 and 3 (d) of the Convention as regards the witnesses A.P. and M.D.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 120. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 121. The first, second and third applicants claimed an unspecified amount in respect of non-pecuniary damage, and the fourth applicant claimed 180,000 euros (EUR) in respect of non-pecuniary damage for wrongful imprisonment and the violation of his right to respect for his private and family life and correspondence.", "122. The Government contested these claims. 123. Having regard to all the circumstances of the present case, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards: - EUR 4,000 each to the first, second and third applicants in respect of non-pecuniary damage for the violation(s) of Article 6 §§ 1 and 3 (c) of the Convention, plus any tax that may be chargeable to them, and - EUR 1,500 to the fourth applicant in respect of non-pecuniary damage for the violation of Article 8 of the Convention, plus any tax that may be chargeable to him.", "B. Costs and expenses 124. The first, second and third applicants each claimed 18,750 Croatian kunas (HRK)[1] for the costs and expenses incurred before the domestic courts, and EUR 2,000 for those incurred before the Court. 125. The fourth applicant claimed EUR 666.66 for the costs and expenses incurred before the domestic courts, and EUR 1,999.98 for those incurred before the Court.", "126. The Government submitted that the claim for expenses had been lodged without any supporting documents, so should be rejected. 127. With regard to the costs and expenses incurred before the domestic courts, regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award: - EUR 1,000 each to the first, second and third applicants, and - EUR 666.66 to the fourth applicant. 128.", "With regard to the costs incurred before the Court, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award: - EUR 2,000 to the first applicant, - EUR 1,600 each to the second and third applicants, - EUR 1,999.98 to the fourth applicant. C. Default interest 129. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2.", "Declares the applicants’ complaints under Article 6 § 1 of the Convention concerning the use in the criminal proceedings against them of evidence obtained by means of secret surveillance inadmissible and the remainder of the applications admissible; 3. Holds that there has been a violation of Article 8 of the Convention in respect of the fourth applicant as regards the secret surveillance order issued on 4 May 2007 and extended on 2 July 2007 on account of lack of adequate reasoning; 4. Holds that there has been no violation of Article 8 of the Convention in respect of the applicants as regards the remainder of their complaints concerning the secret surveillance measures; 5. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the first, second and third applicants concerning the failure to forward the submission of the State Attorney’s Office of the Republic of Croatia to the defence; 6. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first applicant concerning his absence from the session of the appeal panel; 7.", "Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the fourth applicant; 8. Holds, (a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement: (i) EUR 4,000 (four thousand euros) each to the first, second and third applicants and EUR 1,500 (one thousand five hundred euros) to the fourth applicant, plus any tax that may be chargeable to them, in respect of non-pecuniary damage; (ii) EUR 3,000 (three thousand euros) to the first applicant, EUR 2,600 (two thousand six hundred euros) each to the second and third applicants and EUR 2,666.64 (two thousand six hundred and sixty-six euros and sixty-four cents) to the fourth applicant, plus any tax that may be chargeable to them, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 9. Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 6 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Abel CamposKrzysztof WojtyczekRegistrarPresident APPENDIX No.", "Application no. Lodged on Applicant Date of birth Nationality Place of residence Represented by Complaint(s) 40429/14 23/05/2014 Željko BOSAK 09/02/1973 Croatian Zagreb Višnja DRENŠKI LASAN 1.Unlawful and unjustified secret surveillance 2. Submission of the State Attorney’s Office not forwarded to the defence 3. Not present at the session of the appeal panel 41536/14 29/05/2014 Ramazan KESKIN 01/01/1979 Dutch Rotterdam Višnja DRENŠKI LASAN 1.Unlawful and unjustified secret surveillance 2. Submission of the State Attorney’s Office not forwarded to the defence 42804/14 02/06/2014 Ahmet BASALAN 07/12/1984 Dutch Rotterdam Višnja DRENŠKI LASAN 1.Unlawful and unjustified secret surveillance 2.", "Submission of the State Attorney’s Office not forwarded to the defence 58379/14 18/08/2014 Dubravko ŠOŠO 31/08/1957 Croatian Zagreb Andrej ILIĆ 1.Unlawful and unjustified secret surveillance 2. Examination of witnesses [1]. EUR 2,500" ]

[ "FIRST SECTION CASE OF SAKHVADZE v. RUSSIA (Application no. 15492/09) JUDGMENT This version was rectified on 11 September 2012 under Rule 81 of the Rules of Court STRASBOURG 10 January 2012 FINAL 09/07/2012 This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Sakhvadze v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 6 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "15492/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Teymuraz Zurabiyevich[1] Sakhvadze (“the applicant”), on 4 February 2009. 2. The applicant was represented by Mr F. Bagryanskiy, Mr A. Mikhaylov and Mr M. Ovchinnikov, lawyers practising in Vladimir. The Russian Government (“the Government”) were represented by G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "On 30 September 2009 the President of the First Section decided to give priority treatment to the application and to give notice of it to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1975 and is currently serving a prison sentence in the Vladimir region.", "5. In 2004 and 2005 the applicant was convicted of a number of criminal offences and sentenced to eight years’ imprisonment. He has served his sentence in prisons in the Vladimir region. A. The applicant’s medical conditions and health care from July 2006 to June 2009 6.", "From 20 July 2006 to 5 June 2009 the applicant was admitted to the tuberculosis unit in the hospital attached to Vladimir prison no. 3 (“the hospital”). On 5 June 2009 the applicant was transferred to medical facility LIU-8 in Kirzhach, in the Vladimir region. 1. The applicant’s account 7.", "The applicant raised the following specific grievances concerning his medical history and state of health. (a) Myelopathy 8. On an unspecified date the applicant was diagnosed with cervical spinal myelopathy accompanied by motor neuron impairment. In 2009 he described his condition as follows. He could bend his left knee but his right knee only bent with severe pain.", "As a result, the applicant hardly ever moved and his leg muscles were atrophied. His right-hand fingers were crooked; it was painful when he tried to straighten them. He suffered from severe pain in his right hand, left shoulder, small of the back, knees, neck, left foot and hip. His right-hand palm, back and right hip were covered with sores. He had sores on his right-hand fingers which suppurated.", "9. During his admission and stay in the hospital from July 2006 to June 2009 the applicant was examined by neurologist K. The applicant’s medical records indicate that the applicant was bedridden and, for a period of time, communicated with hospital staff by handwritten notes. The neurologist recommended an MRI scan and early release from prison on health grounds. For unspecified reasons, no MRI scan was carried out. Early release was refused in August 2006.", "10. In September 2006 the applicant was examined by neurologist N., who prescribed physical therapy, vitamin-based treatment, pain relief medication and non-steroidal anti-inflammatory drugs. It was also recommended that the applicant be examined by a rheumatologist and a trauma specialist (see also paragraph 17 below). X-rays of the right wrist joint and left knee joint were indicated. 11.", "It is unclear what acts of medical care were performed in relation to the applicant’s myelopathy from September 2006 to February 2007. 12. In reply to a letter from the applicant’s lawyer, in February 2007 L., a neurologist at the Vladimir Region Clinical Hospital, wrote to him advising that myelopathy was a chronic and slowly progressing disease, leading to gradual deterioration of the patient’s condition with increased symptoms related to the motor function, level of awareness, the function of the pelvic organs and bedsores. The neurologist concluded that “complex therapy was required in a specialised medical institution, including an electromyography (EMG) test every six months, irrespective of the treatment’s effectiveness”. 13.", "In September 2007 the applicant complained to the national authorities in relation to inadequate medical assistance rendered to him and poor conditions of his detention (see paragraphs 41-58 below). 14. In 2008 one of the above-mentioned neurologists examined the applicant and prescribed massage, medication and vitamins. 15. According to the applicant, he was not provided with any specific treatment (medication or physical therapy) in relation to his myelopathy.", "Any mention in his medical records of a refusal to receive myelopahy‑related treatment was forged. None of the refusals were written on a special form and none of them bore his signature, despite the requirements of national legislation (see also paragraph 18 below). 16. Since early 2009 the applicant has suffered from frequent convulsions and has had difficulties in holding items in his hands. 17.", "In May 2009 the applicant was examined by neurologist N., who made the following findings: “There is long-term and progressive post-traumatic damage to the lumbosacral plexus, which prevents active movement with the left leg. Damage to the lumbar spine and left leg prevents autonomous walking and results in a considerable reduction of autonomous movement. Thus, at the moment, the patient has a persisting dysfunction of the motor function of the left leg, impossibility of autonomous movement, dysfunction of the motor function of the right arm/hand...The patient requires constant help and active treatment. Focus should be on physiotherapeutic procedures and medical rehabilitation (electro-stimulation, anaesthetic/analgesic treatment). I recommend medication by Milgamma compositum, Berlition and adequate non‑steroid anaesthetic/analgesic treatment and vascular medication with Kurantil and a course of Aktovegin... A consultation with a trauma specialist and a rheumatologist is necessary to [further] adapt [existing] medical procedures.”[2] Similar recommendations were made in September 2009.", "(b) Other medical conditions and complaints 18. Since 1998 the applicant has been suffering from tuberculosis, which became drug-resistant and affected by haemoptysis (coughing up of blood) in July 2006. The applicant was prescribed medication and injections but refused them on numerous occasions because of acute negative side effects such as nausea. The applicant’s medical records indicate that on several occasions medical staff talked to him about the need to continue treatment but to no avail. 19.", "On an unspecified date before his admission to hospital, the applicant underwent a gastrectomy, significantly reducing his stomach. The applicant has also had half of his tongue removed, due to which his speech is impaired. In 2009 the applicant weighed less than 56 kg for 180 cm in height. 20. The applicant has also suffered (and continues to suffer) from acute pain in the stomach area, the liver, the kidneys and from nausea.", "According to the applicant, he was not examined by a gastroenterologist or given any treatment. An endoscopy was carried out for the first time in 2008. On three occasions it was not carried out, although the applicant had not made a valid refusal. No medication was provided to him. 21.", "In January 2007 the applicant was given an electrocardiogram (ECG) test. No prior or subsequent tests or medication were provided, despite the applicant’s acute and persistent heart pains. He was not examined by a cardiologist. 22. Since mid-2007 the applicant has also suffered from enuresis (urinary incontinence).", "It was recorded in late 2007 that the applicant had made verbal complaints to the unit supervisor about his treatment and had asked that his mattress be replaced because of a urine odour. His request was refused, as no smells were detected and the mattress was dry. 23. Despite his liver pains, he was not examined by a hepatologist; nor was he given any medication. He submitted that the latter was particularly important, given that he had received chemotherapy for his tuberculosis.", "24. In July 2006 the applicant was examined by an ophthalmologist. In March 2007 he was diagnosed with slight nearsightedness and retinal angiospasm. In reply to a complaint he made of deteriorating eyesight, in April 2008 it was recorded that no visual acuity test could be carried out in the cell and no treatment was required. 25.", "The applicant has lost most of his teeth. His remaining teeth and his gums are rotten and cause him pain. The applicant had two consultations with a dentist; no treatment was given following those consultations. 26. According to the applicant, no medical assistance has been provided to him – in particular, from late December 2008 to June 2009 – in relation to his above-mentioned conditions (see also paragraph 27 below).", "(c) Discharge from the hospital 27. A discharge certificate was issued on 12 January 2009. It is unclear whether the applicant remained in solitary confinement or was transferred to another part of the hospital. On 15 January 2009 he complained to a neurologist of pain in his extremities and was prescribed medicine. He was also examined by a therapist and was given medicines for headache and abdominal pains.", "He was examined on 22 January 2009 due to the worsening of his state of health and was given vitamins and medicines for intestinal disbacteriosis and colitis. Three days later he was examined by an ENT specialist, on whose prescription he was given an iodine-based liquid to rinse his mouth with. On 29 January 2009 he was examined by a dentist and an ENT specialist who confirmed a diagnosis of antritis. In February 2009 he was provided with a follow-up check-up and was told to continue the treatment. 2.", "The Government 28. The Government argued, with reference to the applicant’s medical records, that on numerous occasions between 2006 and 2008 the applicant had refused to be examined, to take medicines (mainly tuberculosis related), to undergo medical examinations or to submit to laboratory tests. For instance, as could be seen from his medical records, the applicant had complained of pain in his body on 12 and 19 September 2007, pelvic pain on 8 October 2007 and pain in his arms on 7 March 2008 but had “plainly refused to submit to an examination”. 29. In support of their statements, the Government relied on typed copies of the applicant’s medical records for the period from July 2006 to January 2009, medical reports (медицинские заключения) of 21 December 2009 issued by the administration of prison no.", "3, as well as on various certificates issued by the administrations of prisons no. 3 and LIU-8, their licences for providing medical care and documents confirming the qualifications of their medical staff. 30. The Government stated that the above documents were official documents submitted by duly authorised public officials in the performance of their official duties. These officials, by the nature of their functions, were aware of the fact that any false information could result in prosecution for abuse of power or forgery of official documents.", "B. Material conditions of the applicant’s confinement in the prison hospital 1. The applicant’s account 31. In July 2006 the applicant was admitted to the tuberculosis unit of the hospital attached to prison no. 3.", "32. Between July and November 2007 the applicant was kept in various cells accommodating, at various times, two to eight people. In the first cell there was no mandatory ventilation. The cells were dirty, poorly heated, filled with unpleasant kitchen odours and infested with insects and rodents. 33.", "In November 2007 the applicant was transferred to another cell in which he was kept alone. The cell window was covered with newspaper, hindering access to natural light. The temperature in the cell and the adjoining shower room was often low. 34. Being unable to shout for help owing to the fact that part of his tongue was missing, the applicant was obliged to attract the hospital attendants’ attention by throwing items at the door or by knocking on his bedside table.", "The door to the cell was kept locked and was unlocked by prison officers at the attendants’ request. 35. The applicant needed assistance to use toilet and to wash himself. Once a month two detainees took him to the shower room and washed him. In addition, a hospital attendant brought a basin into the cell so that the applicant could wash his face.", "The applicant was provided with a piece of soap and a small roll of toilet paper once a month. 36. The cell was filled with a urine odour because of the applicant’s enuresis. According to the applicant, his request for a new mattress and more frequent cleaning of bed linen was refused. The food was of poor quality.", "The applicant was not provided with drinking water and had to drink tap water. He was not taken outdoors during his stay in the hospital. 37. The applicant was not visited by doctors or given medication after 29 December 2008. On 12 January 2009 a prison doctor told him that he would soon be discharged from the hospital because he had completed his tuberculosis treatment and that further treatment would be of no use because the applicant was suffering from a drug-resistant form of the disease and his lungs were deteriorating.", "38. Although he had been informed of his imminent discharge, the applicant was not transferred from the prison hospital. He was not examined by the doctors; once a day he received visits from hospital attendants who brought him food and water and cleaned his chamber pot. The doctors and nurses refused to examine him, claiming that he had been discharged and thus was not “on the hospital’s books”. 39.", "The applicant submitted written statements from several detainees, who, however, had not been kept in the same cell(s). Mr Po. described the general material conditions of confinement in the tuberculosis unit between 2004 and 2009. Mr V. described the conditions of his detention in the hospital in 2004 and “in and after 2005”. Mr D. and Mr Ch.", "stated that since September 2007 they had been kept in rooms measuring approximately fourteen square metres and accommodating ten people. They added that they had heard about the applicant’s solitary confinement; about his inability to move around and to take care of himself; and that he had not been taken outdoors for a long time. 2. The Government’s account 40. According to the Government, the applicant had been kept alone under the constant supervision of one hospital attendant and twenty‑four‑hour assistance from on-duty staff had been available.", "At any moment the applicant could have asked to be helped by the attendant present. The applicant was able to access, alone or with assistance, a chamber pot or the toilet, which was two metres from his cell. The toilet was equipped with a flushing cistern; a sink was also made available there. The chamber pot was kept in the cell and was always cleaned after use. Bedding had been cleaned and a shower had been available once per week.", "As could be seen from the applicant’s medical records, in 2007 the applicant had not needed another mattress because he had not asked for it or because there had not been a urine odour in the cell. The cell had functioning mandatory ventilation and air was able to enter the cell through a window ventilator. The window provided access to natural light; this window was properly glazed. Artificial light was also available in the cell. The heating system functioned properly, achieving a room temperature of 20 degrees Celsius on average.", "The applicant had been fed in accordance with the regulations concerning ill detainees. The applicant had been taken, on foot or in a wheelchair, to outdoor exercise three times per day. C. The applicant’s complaints to national authorities 41. On 7 September 2007 the applicant and his lawyer requested that criminal proceedings be initiated concerning inadequate medical assistance rendered to the applicant and poor conditions of his detention. They referred to Article 124 (“failure to provide medical assistance”) and Article 236 (“breach of sanitary and health regulations”) of the Russian Criminal Code.", "42. Subsequent events can be split into two parallel sets of proceedings, in which the applicant was represented by a lawyer before the national authorities, including the courts. 1. Proceedings under the Prosecutors Act and the Code of Civil Procedure 43. On 5 October 2007 an assistant to the Vladimir town prosecutor supervising penitentiary facilities (“the town prosecutor”) examined the above complaint and issued a written opinion (заключение) stating that no action was required from the prosecutor under section 33 of the Prosecutors Act (see paragraph 59 below).", "The town prosecutor approved the assistant prosecutor’s opinion; the applicant was informed accordingly. 44. The applicant brought court proceedings, challenging the opinion of 5 October 2007 and the town prosecutor’s refusal to take action. By a judgment of 21 January 2008 the Oktyabrskiy District Court in Vladimir held that this refusal was unlawful because the inquiry had not been thorough for the following reasons: the applicant’s medical records had not been assessed; no medical expert had been appointed; the material conditions of the applicant’s confinement in hospital had not been inspected; the applicant and his counsel had not been heard; no assessment had been made of the applicant’s complaints concerning lack of outdoor exercise, the deplorable quality of food, insufficiency of hygiene items and the sanitary condition of the shower room and toilets. 45.", "In February 2008 an assistant town prosecutor issued a new opinion, again concluding that that no action was required from the town prosecutor under section 33 of the Prosecutors Act. This decision was confirmed by the town prosecutor. However, in March 2008 for unspecified reasons the town prosecutor reconsidered his own decision and ordered an additional inquiry. In April 2008 the assistant prosecutor issued a new refusal, which was then confirmed by the town prosecutor. 46.", "The applicant brought court proceedings to challenge this refusal. By a judgment of 16 June 2008 the District Court held that the refusal had not been properly reasoned because only part of the procedural shortcomings identified in the court decision of 21 January 2008 had been remedied in the resumed inquiry. The court held as follows: “The proper examination of the complaint relating to inadequate medical assistance within the penitentiary system required that an expert opinion should be sought from specialists unrelated to the penitentiary system... The refusal under review contained no assessment of the complaints concerning chest and heart pain; ... no assessment was made of the allegations concerning the lack of consultation with a cardiologist and the absence of any electrocardiogram...The prosecutor’s findings as to the quality of the food was based on ... reports, while no indication was made as to the method used, for instance lab tests. No assessment was made of the relevant logbooks.", "The assessment concerning sanitary installations, the alleged presence of rodents and insects, and lack of outdoor exercise was not thorough...” 47. In March 2009 the regional tuberculosis hospital examined the applicant’s medical records at the request of the Vladimir Regional Department of the Health Ministry. The hospital considered that the applicant had been provided with adequate tuberculosis-related treatment in prison no. 3 and that the effectiveness of this treatment had been adversely affected by the applicant’s repeated refusals to take medicines and to comply with his doctors’ recommendations. 48.", "Also, three people, apparently connected to the regional clinical hospital, examined the applicant’s medical records and on 2 April 2009 issued a short report concerning illnesses affecting the applicant’s nervous system. The panel held as follows: “The treatment provided [to the applicant] was in full compliance with the applicable standards, in line with the diagnosis established in 2003 and the recommendations issued by medical specialists in Moscow. Since 2003 the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [in] Moscow and Cherepovets. The disease has developed gradually so that additional check-ups were necessary in the meantime. Conclusions: no cervical spine MRI scan has been carried out, despite a recommendation [that one should be conducted] after computer X-ray imaging; no consultation by a neurosurgeon has been arranged; no thioctic acid based medicine has been prescribed.” 49.", "The town prosecutor asked the Vladimir Regional Department of the Health Ministry to carry out an inquiry regarding the medical care provided to the applicant in detention. The department’s letter of 6 April 2009 indicated that the department had carried out an “independent” inquiry involving unspecified “out-of-staff” leading medical professionals who had examined the applicant’s medical records. They concluded as follows: “Treatment provided [to the applicant] in prison no. 3 was in compliance with the standard treatment required for patients suffering from drug-resistant tuberculosis... All relevant methods of treatment were used. The effectiveness of the treatment was affected by [the applicant’s] repeated refusals to [take his] prescribed medicines, as confirmed by the medical records.", "Treatment of [the applicant’s] somatic illnesses was fully compliant with the diagnosis and recommendations made by the Moscow‑based specialists in 2003. Since 2003 the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [in] Moscow and Cherepovets. The disease has developed gradually so that additional check-ups were necessary in the meantime. Conclusions: no cervical spine MRI scan has been carried out, despite a recommendation [that one should be conducted] after computer X-ray imaging; no consultation by a neurosurgeon has been arranged; no thioctic acid based medicine has been prescribed.” 50. In his opinion of 18 April 2009, an assistant town prosecutor again considered that no action was required on the part of the prosecutor in reply to the applicant’s complaint.", "The assistant town prosecutor held as follows: “The applicant has been admitted to hospital in relation to infiltrating pulmonary tuberculosis, as well as cervical spinal myelopathy affecting movement of the right arm and the legs... The main diagnosis (tuberculosis) has been confirmed by X-rays and bacteria analysis. The following medical acts were carried out: blood tests, an electromyography (EMG) test in September 2006, CT scanning in September 2007... As mentioned in the [applicant’s medical] records, between November 2007 and January 2008 [the applicant] refused to take medicines for [treating his] tuberculosis... During his stay in the tuberculosis unit he was regularly examined by neurologist K. The latter explained that he had been supervising the patient since 2005. As can be seen from the medical history: in 2003 the patient was treated for post‑traumatic plexopathy. He was given an EMG test, was examined by a specialist doctor and was diagnosed with osteochondrosis and discogenic radiculopathy...", "He received vascular therapy, B-group vitamins [and] non-steroidal anti-inflammatory drugs. In 2006 the applicant was diagnosed with pulmonary tuberculosis and was treated in a tuberculosis unit. He was given an EMG test, a CT scan and an X-ray. As a result, he was diagnosed with cervical spinal myelopathy... radiculopathy [and] sciatic neuralgia affecting the movement of [his] left foot. The patient was and is regularly examined by a neurologist.", "The [doctor’s] recommendations included a course of vascular therapy, vitamin therapy and [the applicant] was instructed about the further intake of muscle [neuromuscular] relaxants... At present the patient’s state of health is stable, he has been regularly examined by a neurologist but has refused to [take the medicines prescribed for him] in 2006 and 2007. On several occasions he was examined by specialist medical professionals (such as a surgeon, a therapist and a dermatologist) but refused to be examined by a psychiatrist. At present, he is in section 1 of the hospital in prison no. 3. In order to assess the medical care afforded [to the applicant], specialists from the regional department of the Ministry of Health were asked to examine [his] medical records together with regional specialists.” Having cited the letter of 6 April 2009 (see paragraph 49 above), the assistant prosecutor concluded that “independent specialists [had] considered that the patient had been treated in full compliance with the relevant standards”.", "Concerning the material conditions of the applicant’s confinement, the assistant prosecutor made the following findings: “The material in the file discloses that in March 2006 the prison received a favourable (preventive) epidemiological report. This report is valid until 2011... In February 2008 section 1 of the prison hospital was inspected; [the inspection] did not disclose any violations of sanitary regulations. Moreover, in September 2007 repair works were carried out in the tuberculosis unit. Thus, in 2008 it was not possible to inspect the sanitary conditions [pertaining in] the earlier period.", "Food provided to detainees complied with the relevant regulations concerning minimum rations for convicts. Food cooking and [detainees’] diet were controlled by medical professionals together with on-duty officers. [The applicant] was given a special diet for ill detainees. He was also provided with the required hygiene items, which could be confirmed by his signatures in the logbooks. Clothes and bedding had to be submitted for laundering once per week and would be disinfected.", "During the inquiry detainees T., P. and S. were interviewed. Their testimony was not convincing, as they had been named by [the applicant’s] lawyer. Detainees Kh., Z. and Pa. were also interviewed and stated that the material conditions in the living premises of the tuberculosis unit, including food, had been acceptable; cleaning had been regular. [The applicant] had been in the unit since October 2006 when the material conditions had been the same; he had been given medication and had had regular check-ups. An attending assistant had been assigned to him.", "Zo. and Pi. had not answered the summons and could not be interviewed. The prison has a contract with a private company for disinfecting the premises and eradicating rodents and insects. This work was done on a weekly basis.", "No complaints were made by detainees or staff. Consequently, the arguments raised by the [applicant’s] lawyers were examined during the additional inquiry and should be dismissed as unfounded.” 51. The applicant sought judicial review of the refusal of 18 April 2009 under Chapter 25 of the Code of Civil Procedure (see paragraph 60 below). The applicant argued that the report of 2 April 2009 (see paragraph 48 above) had not been “independent” and thorough because: there had been no information about the professional status and the medical specialities of the experts, who may or may not have been the report’s signatories; the applicant had not been examined by any of those individuals; the report had contained no findings concerning the adequacy of the applicant’s medical care in relation to his neurological illness, various (liver, stomach and heart) pains, eyesight or his dental care. Thus, a court-ordered forensic examination was indispensable.", "52. By a judgment of 3 August 2009 the Oktyabrskiy District Court in Vladimir examined the applicant’s complaint against the above refusal of 18 April 2009 and rejected the complaint. The court considered that a public prosecutor was empowered to ensure that no inhuman or degrading treatment was inflicted on detainees. To comply with this function the prosecutor was empowered to carry out inquiries, which should result in reasoned decisions. Such an inquiry had been carried out between 2007 and 2009.", "In the court’s view, the prosecutor had examined all relevant medical documents, including expert reports, and had interviewed a number of public officials, detainees, the applicant and his counsel. The court also held as follows: “A number of medical professionals were charged with the task of assessing the treatment provided to the applicant. An independent expert examination concluded that the applicable standards for treating tuberculosis had been respected; the treatment had been affected by the applicant’s repeated refusals, as recorded, to comply with the recommended course of treatment. The applicable standards of treating somatic diseases had been equally respected. From 2003 the applicant had been supervised by neurologists; no cervical spine MRI scan had been carried out, despite a recommendation [that one should be conducted] after computed X-ray imaging; no consultation by a neurosurgeon had been arranged; no thioctic acid based medicine had been prescribed.", "As to the complaints concerning chest or heart pain, as indicated in the inquiry report, the applicant had been examined by cardiologists, had had an electrocardiogram test and had received treatment. No sufficient argument was adduced by the applicant for commissioning yet another independent expert report. In any event, this argument had not been raised during the inquiry. As to food, the applicant was given and continues to receive a special diet. The food control record indicates that [his] rations, their quality and quantity were in line with applicable instructions and standards.", "As to sanitary installations, the competent authority has issued a report confirming the sanitary conditions [were] proper. It was established that in September 2007 significant repair works had been ongoing in the tuberculosis unit. Thus, it had been impracticable to inspect the units, the shower room or the toilet facilities to which the applicant had previously had access. The findings concerning the absence of rodents and insects in the detention facility had been made with reference to a valid contract for disinfection services, the current reports concerning the performance of the contract and due to the absence of any complaints from the [facility’s] personnel or detainees. Hygiene items had been given to the applicant against his signature on a monthly basis.", "Clothing and bedding was and is disinfected and cleaned once per week. In view of the foregoing, the court concludes that the 2009 inquiry report and its conclusions were reasoned and thorough, and comply with the requirements of [applicable] legislation”. 53. The applicant appealed. On 6 October 2009 the Regional Court upheld the judgment of 3 August 2009.", "It held as follows: “The applicant’s arguments concerning the correctness of [his] medical diagnosis and the scope and correctness of [his] treatment were thoroughly examined and dismissed by the first-instance court. The latter’s assessment was based on all available medical evidence, which had been received from, amongst other sources, sources unrelated to the penal authorities.” 2. Proceedings under the Code of Criminal Procedure 54. In the meantime, the applicant complained that no decision had been taken as to the institution of criminal proceedings, as requested. By a decision of 23 November 2007 the regional prosecutor’s office refused to institute criminal proceedings, considering there had not been the corpus delicti required under Articles 124 and 236 of the Criminal Code in the actions of the hospital’s staff.", "On 21 January 2008 the higher investigating authority quashed this decision, considering that it was necessary to interview the medical staff of the detention facility. 55. On 31 January 2008 the investigating authority issued a new refusal to institute criminal proceedings for lack of a criminal offence. On 6 March 2008 the Oktyabrskiy District Court in Vladimir dismissed the applicant’s appeal and upheld this refusal. On 10 April 2008 the Vladimir Regional Court upheld the first-instance decision of 6 March 2008.", "56. For unspecified reasons, the inquiry was resumed. On 12 May 2008 an investigator in the Vladimir Investigations Department issued another refusal to institute criminal proceedings. 57. On 23 July 2008 the Leninskiy District Court in Vladimir examined the applicant’s complaint against the refusal of 12 May 2008 under Article 125 of the Code of Criminal Procedure and rejected the complaint.", "The court held as follows: “Since 2007 the inquiry proceedings have been resumed on several occasions... The applicant is being detained in a medical facility and has been and is being provided with appropriate medical assistance. It has been established that on a number of occasions he impeded treatment and refused to make medicines. It has not been established that the deterioration of his health was due to inaction on the part of the medical staff. No dangerousness on account of a breach of sanitary regulations, required by Article 236 of the Criminal Code, has been established.” 58.", "On 11 September 2008 the Regional Court upheld the above judgment. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Complaints procedures 59. Section 33 of the Prosecutors Act (Federal Law no.", "2202-I of 17 January 1992) provided at the time that a prosecutor was empowered to order a detention facility to take measures necessary in order that a detainee’s rights and freedoms be respected. 60. In accordance with ruling no. 2 of 10 February 2009 made by the Plenary Supreme Court of Russia, complaints brought by detainees in relation to inappropriate conditions of detention (for instance, a lack of adequate medical assistance), as well as complaints against decisions imposing disciplinary penalties, should be examined by a court under a procedure prescribed by Chapter 25 of the Code of Civil Procedure. According to this procedure, a person may lodge a court action if an action or omission by a public authority or official has violated an individual’s rights or freedoms, has impeded their exercise or has unlawfully imposed an obligation or liability (Articles 254 and 255 of the Code).", "This action should be lodged within three months of the date when the person learnt about the violation of his rights or freedoms (Article 256). If the court considers that the complaint is justified, the court shall order the respondent authority or official to remedy the violation (Article 258). B. Health care in detention 61. Section 29 of the Health Care Act (Federal Law no.", "5487-I of 22 July 1993) provides that detainees have a right to medical assistance, such assistance being provided if necessary in public or municipal medical institutions and at public or municipal expense. 62. Detailed regulation of medical care in detention is provided in a Regulation adopted by the Federal Ministry of Justice and the Federal Ministry of Health and Social Development (decree no. 640/190 of 17 October 2005). It provides that medical assistance in detention should be the same as that guaranteed by the general programme of free health care provided in Russia (Rule 9 of the Regulation).", "Outpatient health files and prescription records should not be handed over to detainees; detainees have a right to receive information relating to their state of health and should be given access to medical documents (Rule 65). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 63. The applicant alleged that the conditions of his detention and the health care in the prison hospital had been so inadequate as to amount to inhuman and degrading treatment, in breach of Article 3 of the Convention. He also contended that the respondent State should be held liable for having failed to investigate his allegations and that the domestic inquiry had fallen short of the requirements of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 64.", "The Government argued that the applicant had not exhausted domestic remedies because he had not brought a civil action for compensation in respect of non-pecuniary damage caused by inadequate health care and the conditions of his detention. For the Government, such an action would have had reasonable prospects of success as it would not have been based on any allegedly systemic problem of cell overpopulation, as in some other cases before the Court. 65. The applicant submitted that he had sufficiently raised his grievances before the national authorities (see paragraphs 41-58 above). 66.", "The Court reiterates that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time – that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV). 67. The Court observes that the applicant raised his grievances in two separate proceedings, including judicial review at two levels of jurisdiction, in respect of the decisions taken by the investigating or supervising authorities.", "The first proceedings were carried out under the Criminal Code and the Code of Criminal Procedure and ended with a final decision of 11 September 2008 (see paragraphs 41-53 above). The second proceedings were carried out under the Prosecutors Act and the Code of Civil Procedure and ended with the final decision of 6 October 2009 (see paragraphs 54-58 above). 68. The respondent Government have not argued, and the Court does not consider, that the remedies used by the applicant, who was assisted by a lawyer, were manifestly inappropriate and devoid of any reasonable prospects of success (see, for comparison, Skorobogatykh v. Russia, no. 4871/03, §§ 32 and 33, 22 December 2009; see also the Supreme Court’s ruling cited in paragraph 60 above).", "The applicant lodged this application in February 2009, while he was still in the prison hospital. The Court does not consider in the present case that before lodging an application before this Court the applicant should have brought a civil action for compensation in respect of non-pecuniary damage. The Court is satisfied that this action would not have offered reasonable prospects of success in view of the factual findings made in the above-mentioned second set of proceedings (see, for comparison, Romokhov v. Russia, no. 4532/04, §§ 101-112, 16 December 2010, and Gladkiy v. Russia, no. 3242/03, §§ 120 and 121, 21 December 2010).", "In view of the foregoing, the Court dismisses the Government’s objection. 69. The Court also considers that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions (a) The applicant 70. The applicant argued that he had not been provided with any specific treatment in relation to his myelopathy. Despite a doctor’s recommendations in 2006, he had not been examined by a rheumatologist or a trauma specialist; no X-rays of his right wrist joint and left knee joint had been taken.", "Despite a doctor’s recommendation in 2007, an electromyography (EMG) test had not been carried out every six months. Despite pain in the stomach area and nausea, he had not been examined by a gastroenterologist and had not been given any treatment for these symptoms. The referral for an endoscopy had only been acted upon in 2008. It had failed to be acted upon on three previous occasions. As to his heart pain, an electrocardiogram (ECG) had only been carried out in January 2007.", "No previous or subsequent tests or medication had been provided, despite his acute and persistent heart pains. He had not been examined by a cardiologist. Despite his liver pains, he had not been examined by a hepatologist; nor had he been given any medication. Such medication had been particularly important given that he had received chemotherapy for his tuberculosis. No medical assistance had been provided in relation to the deterioration in his eyesight or his dental problems.", "All mentions in his medical records of refusals to receive treatment had been forged. None of the refusals had been recorded on a special form and none of them bore his signature, despite the requirements of national legislation. Lastly, the applicant alleged that no medical care had been provided to him between late December 2008 and June 2009 in relation to the aforementioned medical conditions. 71. The applicant further argued that it was incumbent on the respondent Government to refute his allegations, which were sufficiently specific and detailed.", "He noted in that connection that as a detained and seriously ill person, he had been under the control of the staff of the prison hospital. All relevant medical records had been kept by the hospital. He had had no opportunity to verify or challenge the notes made in these records. Moreover, he had been detained alone and had had a limited ability to speak. In the applicant’s submission, the Government had not responded to his allegations, thereby failing to discharge the burden of proof.", "72. Furthermore, the applicant contended that the material conditions of his confinement in the prison hospital, in particular during his solitary confinement, had been unacceptable (for details see paragraphs 33-39 above). 73. Lastly, the applicant argued, with reference to the Court’s case-law concerning the procedural limb of Article 3 of the Convention (Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000‑IV), that the respondent State had been under an obligation to investigate his complaints relating to his medical care and the material conditions of his confinement.", "Although domestic inquiries had been carried out at the domestic level, they had not satisfied the requirements for an “effective and thorough” investigation, as required under Article 3 of the Convention. (b) The Government 74. The Government argued that the applicant had been and was being provided with all necessary medical assistance for the illnesses which he had already had and those which had developed during his time in detention, as confirmed by the reports of 23 March and 6 April 2009. Between July 2006 and January 2009 he had been detained in a medical facility under the constant supervision of its medical staff, including during the evening and at night. He had been regularly examined by a tuberculosis specialist; the progress of the applicant’s condition and treatment had been recorded.", "The applicant had also been regularly examined by several neurologists, as well as by a surgeon, an ophthalmologist, a dermatologist, an otolaryngologist and a psychiatrist. The applicant had undergone the requisite examinations, including biochemical tests, X-rays, an ultrasound examination, an endoscopy, an EMG test, an ECG, a pneumogram and a CT scan. He had been given appropriate medication for his tuberculosis. His treatment had been adversely affected by his repeated refusals to take his prescribed medicine, as noted in his medical records. 75.", "As to the conditions of the applicant’s detention in the hospital, the Government submitted that the applicant, who was suffering from an infectious disease, had been kept alone. The Government insisted that the conditions of his confinement in the tuberculosis unit had not offended against Article 3 of the Convention. 76. Lastly, the Government argued that the applicant’s grievances had received a thorough examination by the national authorities. 2.", "The Court’s assessment (a) General principles (i) Ill-treatment 77. The Court reiterates that Article 3 of the Convention enshrines one of the fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment (see Labita v. Italy [GC], cited above, § 119). However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no.", "25). 78. Ill-treatment that attains such a minimum level of severity usually involves bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002-III, with further references).", "79. In the context of deprivation of liberty, the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention (see, mutatis mutandis, Tyrer v. the United Kingdom, 25 April 1978, § 30, Series A no. 26, and Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161). 80.", "Regarding the issue of health care in detention facilities, the Court reiterates that under Article 3 of the Convention 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 ensured by, among other things, providing him with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI). 81. Where complaints are made about a failure to provide requisite medical assistance in detention, it is not indispensable for such a failure to lead to any medical emergency or otherwise cause severe or prolonged pain in order to find that a detainee was subjected to treatment incompatible with the guarantees of Article 3 (see Ashot Harutyunyan v. Armenia, no. 34334/04, § 114, 15 June 2010).", "The fact that a detainee needed and requested such assistance but it was unavailable to him may, in certain circumstances, suffice to reach a conclusion that such treatment was in breach of that Article (ibid). 82. Thus, although Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds save for exceptional cases (see Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.), no.", "48799/99, 5 April 2001), a lack of appropriate medical treatment may raise an issue under Article 3, even if the applicant’s state of health does not require his immediate release. 83. The national authorities must ensure that diagnosis and care in detention facilities, including prison hospitals, are prompt and accurate, and that, where necessitated by the nature of a medical condition, supervision is regular and involves a comprehensive therapeutic strategy aimed at ensuring the detainee’s recovery or at least preventing his or her condition from worsening (see Pitalev v. Russia, no. 34393/03, § 54, 30 July 2009, with further references). 84.", "On the whole, while taking into consideration “the practical demands of imprisonment”, the Court reserves sufficient flexibility in deciding, on a case-by-case basis, whether any deficiencies in medical care were “compatible with the human dignity” of a detainee (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). (ii) Establishment of facts and assessment of evidence 85. The Court reiterates that allegations of ill-treatment should be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, cited above, § 161).", "86. It has not been the Court’s purpose to borrow the approach of the national legal systems that use that standard. The Court’s role is not to rule on criminal guilt or civil liability, but rather on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment.", "It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among others, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004‑VII; and Akdivar and Others, cited above, § 168).", "87. The Court is mindful of the objective difficulties experienced by detained applicants in collecting evidence to substantiate their claims about the conditions of their detention. Owing to the restrictions imposed by the prison regime, detainees cannot realistically be expected to be able to furnish photographs of their cell or give precise measurements of its dimensions, temperature or the amount of natural light. Nevertheless, an applicant must provide an elaborate and consistent account of the conditions of his or her detention mentioning the specific factors, such as the dates of his or her transfer between facilities, which would enable the Court to determine that the complaint is not manifestly ill-founded or inadmissible on any other grounds. A credible and reasonably detailed description of the allegedly degrading conditions of detention constitutes a prima facie case of ill-treatment and serves as a basis for giving notice of the complaint to the respondent Government.", "88. As to health care in detention, an unsubstantiated allegation of no, delayed or otherwise unsatisfactory medical care is normally insufficient to disclose an issue under Article 3 of the Convention. A credible complaint should normally include, among other things, sufficient reference to the medical condition in question, related medical prescriptions which were sought, made or refused, as well as some evidence – for instance, expert reports – capable of disclosing serious failings in the applicant’s medical care. 89. Convention proceedings do not in all cases lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), as in certain instances the respondent Government alone have access to information capable of corroborating or refuting allegations.", "Failure on a Government’s part to submit such information without a satisfactory explanation may give rise to the drawing of inferences as to the plausibility of the applicant’s allegations (see, in various contexts, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 179, ECHR 2007‑IV; Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004; Aleksandr Leonidovich Ivanov v. Russia, no. 33929/03, §§ 27-35, 23 September 2010; and Boris Popov v. Russia, no. 23284/04, §§ 65-67, 28 October 2010).", "90. Without establishing the truthfulness of each and every allegation made by the applicant, the Court has previously chosen in conditions‑of‑detention cases to concentrate on the allegations that have not been disputed by the respondent Government, or those in respect of which the Government did not comment, although they had been clearly and consistently formulated before the domestic authorities and later before the Court (see Trepashkin v. Russia, no. 36898/03, § 85, 19 July 2007, and Shteyn (Stein) v. Russia, no. 23691/06, § 73, 18 June 2009). 91.", "As to domestic remedies, the Court has previously stated, for instance in the context of Article 2 of the Convention, that if an infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII; see also, in the context of Article 3 of the Convention, Yazgül Yılmaz v. Turkey, no. 36369/06, §§ 56 and 57, 1 February 2011). For example, in the sphere of medical negligence, the obligation may also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability on the part of the doctors concerned to be established and any appropriate civil redress to be obtained (ibid.). 92.", "Concerning its own scrutiny, the Court reiterates that, in view of the subsidiary nature of its role, it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a case. The Court has held in various contexts that where domestic proceedings have taken place, as in the present case, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179 and 180, 24 March 2011). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (ibid). 93.", "At the same time, as already mentioned, in accordance with Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In its assessment of issues under Article 3 of the Convention, the Court gives thorough scrutiny to the question of the authorities’ compliance with prescriptions issued by medical professionals, in the light of specific allegations made by the applicant. (b) Application of the principles to the present case 94. The Court observes at the outset that the applicant has a relatively long history of health problems, covering a period dating back to at least 2003. His complaint in the present case concerns one period of his detention from July 2006 to June 2009 in one medical facility (prison hospital no.", "3). Thereafter, the applicant was transferred to another detention facility, of which he does not complain. 95. The Court also observes, and it is common ground between the parties, that some of the applicant’s medical conditions during the relevant period of time were undeniably serious and required a wide range of treatment, including medication, supervision and monitoring. 96.", "It is fundamental for the proper examination of the case to determine the scope of the complaints raised by the applicant vis-à-vis the respondent State (see paragraph 70 above). In the applicant’s submission, he had not been provided with adequate medical care in relation to his myelopathy, the deterioration of his eyesight, dental problems, and stomach, heart and liver pains. It is common ground between the parties that these complaints may be qualified as credible and sufficiently serious. 97. It is also noted that responsibility for the above grievances was attributed to the State, given that the applicant, who was a convict serving a prison term, was held in a prison hospital run by the State.", "98. The Court observes, and it is not in dispute, that the applicant was provided with adequate medical care for his tuberculosis, which was the main reason for his admission to the prison hospital in July 2006. Nevertheless, it appears that this treatment gave no significant positive result and that the applicant’s state of health progressively deteriorated. This inevitably affected other aspects of his health and the treatment to be prescribed. 99.", "In September 2007, after more than one year of confinement in the hospital, the applicant’s lawyer lodged a complaint in which he raised a number of specific issues pertaining to the alleged lack or inadequacy of medical care, also providing a detailed account of the allegedly degrading conditions of confinement in the hospital. Counsel sought to have a prosecutor ordered to take action under the Prosecutors Act to remedy the above grievances (see paragraphs 43 and 59 above). 100. By domestic standards, the applicant’s allegations appeared prima facie credible, and an inquiry under the Prosecutors Act was ordered. This initial inquiry, which was completed within one month, concluded that no action was required.", "As subsequently acknowledged by the national court, this inquiry had not been thorough because, amongst other reasons, the applicant’s medical records had not been assessed, no medical expert had been appointed and the applicant and his counsel had not been heard (see paragraph 44 above). After a new refusal to take action, the national court again considered that the proper examination of the complaint of inadequate health care in detention required that an expert opinion should be sought outside the prison system. The national court pointed out that the recent refusal had not contained an assessment of the applicant’s complaints concerning his chest and heart pain and the authorities’ failure to arrange for the applicant to have a consultation with a cardiologist and an ECG (see paragraph 46 above). 101. In March and April 2009 the national authorities obtained two medical reports concerning the applicant’s medical conditions and medical care provided to him.", "While upholding in general the treatment provided to the applicant, one of the reports concluded that no cervical spine MRI scan had been carried out, despite a recommendation that one should be conducted after computer X-ray imaging; no consultation by a neurosurgeon had been arranged; no thioctic acid based medicine had been prescribed (see paragraphs 47 and 48 above). 102. These reports served as a basis for a new decision to refuse to order any action on the part of the prosecutor. The prosecutor also examined a number of relevant medical documents, interviewed the applicant, his lawyer, and a number of public officials and detainees. Subsequently, the national courts at two levels of jurisdiction upheld the refusal on judicial review (see paragraphs 50-53 above).", "103. The Court reiterates that its task is to determine whether the circumstances of a given case disclose a violation of the Convention in respect of an applicant, rather than to assess in abstracto national legislation of the respondent State, its regulatory schemes or the complaints procedure used by an applicant. Thus, mere reference to the domestic compliance with such legislation or schemes, for instance as regards licensing of medical institutions or qualifications of medical professionals, does not suffice to oppose an alleged violation of Article 3 of the Convention. It is fundamental that the national authorities dealing with such an allegation apply the standards which are in conformity with the Convention principles as interpreted by the Court (see paragraphs 77-83 above). 104.", "It has not been argued that the applicant omitted to raise in substance in the domestic proceedings certain specific complaints concerning his medical conditions. Thus, it is assumed that the domestic authorities, including the courts, should have dealt with the substance of such complaints, making relevant findings of fact and of law. However, it does not follow from the material available to the Court or from the Government’s own submissions before it that the applicant’s complaints concerning his eyesight and dental treatment were dealt with. In fact, the respondent Government centred their submissions on the tuberculosis-related matters. In the absence of a proper explanation from the respondent Government, the Court is inclined to give credence to the applicant’s submission that he required medical care in relation to the aforementioned medical conditions and that no adequate medical care was provided to him.", "105. Between 2006 and 2009 a number of neurologists made various recommendations in relation to the applicant’s myelopathy, after having examined the applicant and/or his medical file (see paragraphs 8-14 above). The applicant contended that he had not received any specific treatment (for instance, medication or physiotherapeutic procedures) in relation to his myelopathy. The Government provided no convincing evidence which could confirm that the applicant had refused to take any medicine prescribed for that illness or that the doctors’ recommendations were complied with. For instance, it has not been specified what acts of medical care were performed in relation to the applicant’s myelopathy from September 2006 to February 2007.", "106. In addition, neither at the domestic level nor before the Court did the Russian authorities assess the findings of the two expert reports stating that: no cervical spine MRI scan had been carried out, despite a recommendation that one should be conducted after computer X‑ray imaging; no consultation by a neurosurgeon had been arranged; no thioctic acid based medicine had been prescribed (see paragraphs 47 and 48 above). The Court is not ready to dismiss these findings as minor or clearly incapable of affecting the adequacy of the health care provided to the applicant. 107. The respondent Government also submitted another medical report dated 21 December 2009 issued by the detention facility which was in charge of the medical care at issue in the present case (see paragraph 29 above).", "While the fact that experts are employed by one of the parties to domestic proceedings may give rise to apprehension as to the neutrality of the experts, what is decisive are the positions taken by the experts throughout the proceedings, the manner in which they perform their functions and the way the courts assess the expert opinion. An opinion given by a court-appointed expert is likely to carry significant weight in the judicial assessment of the issues within that expert’s competence (see, albeit in the context of Article 6 of the Convention, Shulepova v. Russia, no. 34449/03, § 62, 11 December 2008). In the Court’s view, the available reports in the present case do not effectively disprove the applicant’s allegations. 108.", "Also, while noting that the applicant was able to benefit from legal representation and that the national courts acknowledged a number of shortcomings in the course of the domestic inquiry, the Court observes with concern that this inquiry spanned over two years, which is worrisome when an individual’s current and serious medical conditions and medical care are at issue (see X v. France, 31 March 1992, §§ 31-49, Series A no. 234‑C). Indeed, the applicant’s medical conditions evolved over time during the inquiry, thus making each delay an additional factor contributing to the complexity of the issues to be determined. 109. The Court’s findings in the preceding paragraphs concerning the assessment of the applicant’s medical care at the domestic level make it unnecessary to make any further findings in relation to the applicant’s arguments about the alleged ineffectiveness of the inquiries carried out in the present case.", "110. In view of the available material, the Court is not satisfied that the applicant was provided with adequate medical care between January and June 2009 (see paragraph 27 above). None of the available medical reports gives any adequate assessment of the applicant’s medical care in respect of this period of time after the formal discharge of the applicant from the hospital. 111. While it is true that the Court was provided with a typed copy of the applicant’s medical file, the Court is struck by the unspecific and summary nature of the respondent Government’s observations in the present case, which sits ill with the specific and detailed nature of the grievances raised by the applicant and the gravity of his medical conditions, as recorded in his medical file.", "112. In view of the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention in relation to the applicant’s health care from July 2006 to June 2009. 113. Having reached the above conclusion, the Court does not need in the present case to make separate findings concerning the material conditions of the applicant’s confinement in the medical facility. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 114. 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 115. The applicant claimed 150,000 euros (EUR) in respect of non‑pecuniary damage. 116.", "The Government considered that the claim was excessive and that a finding of a violation would suffice. 117. The Court observes that it is undeniable that the applicant must have suffered physical pain and mental anguish in relation to his serious medical conditions. It should also be accepted that he must have suffered distress, frustration and anxiety related to his inadequate health care. Having regard to the nature of the violation, the Court awards the applicant EUR 9,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses 118. The applicant also claimed EUR 10,000 for lawyers’ fees incurred before the Court. 119. The Government submitted that there was no proof of payment of this sum to the applicant’s lawyers.", "120. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The respondent Government have not argued that the legal assistance agreement between the applicant and his lawyers was not enforceable under Russian law or that the applicant was not under a contractual obligation to pay the fees agreed (see, for comparison, Flux v. Moldova (no. 2), no. 31001/03, § 60, 3 July 2007, and Salmanov v. Russia, no.", "3522/04, § 98, 31 July 2008). Regard being had to the documents in its possession and to the above criteria, the Court finds it reasonable to award the applicant EUR 5,000, plus any tax that may be chargeable to him thereon. C. Default interest 121. 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. FOR THESE REASONS, THE COURT 1.", "Declares unanimously the application admissible; 2. Holds by five votes to two that there has been a violation of Article 3 of the Convention in respect of the applicant’s health care from July 2006 to June 2009; 3. Holds by five votes to two that there is no need to examine the complaints concerning the conditions of detention; 4. Holds by five votes to two (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 9,000 (nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 10 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lorenzen and Møse is annexed to this judgment. N.V.S.N. JOINT DISSENTING OPINION OF JUDGES LORENZEN AND MØSE In our view, the Court should attach particular importance to the existence of domestic inquiries and judicial proceedings, which ended with the judgment of 3 August 2009, as upheld on appeal (see paragraphs 43 to 53 of the judgment). The national authorities assessed the applicant’s medical records and obtained testimonies and medical opinions.", "The applicant, who was represented, was afforded an adequate opportunity to present his arguments and evidence, as well as to contest the other party’s submissions, in adversarial proceedings. It appears that the applicant and his counsel had access to the relevant documents, including the applicant’s medical records, necessary for substantiating their allegations. The applicant’s grievances relating to the effectiveness of the domestic inquiries are not convincing. Although it is regrettable that the inquiry took nearly two years, we find no sufficient reason to depart from the factual findings made by the domestic authorities, as confirmed on judicial review, concerning the various aspects of the applicant’s complaints about his health care. In particular, it has not been convincingly established that any alleged failure to carry out specific treatment or make arrangements for consulting specialist medical professionals, including between late December 2008 and the applicant’s transfer to another detention facility, was contrary to any previous medical prescriptions or – more generally – led to treatment below an adequate standard.", "In this context, it should be taken into account that the applicant had a variety of different health problems, including tuberculosis and a chronic and progressing neurological disease which inevitably affected other aspects of his health; that the authorities provided medical care on numerous occasions; and that he on occasions refused to take the necessary medication (see paragraphs 18, 28-30 and 57-58). It is true that two medical reports indicated that no cervical spine MRI scan had been carried out, despite a recommendation that one should be conducted after computer X-ray imaging; no consultation by a neurosurgeon had been arranged; and no thioctic acid based medicine had been prescribed. But we are not convinced that the fact that these recommendations were not followed up affected the adequacy of the health care provided to the applicant to such an extent that it amounted to ill-treatment within the meaning of Article 3 of the Convention. We therefore conclude that there has been no violation of Article 3 in relation to the health care provided to the applicant from July 2006 to June 2009. Turning to the material conditions in the hospital, we note that also these submissions by the applicant were duly assessed at the domestic level.", "The applicant, who was assisted by a lawyer at the domestic level and before the Court, has not put forward convincing arguments which lead us to disagree with the domestic courts’ assessment. Consequently, there was also no breach of Article 3 with respect to the material conditions in the hospital. [1] Rectified on 11 September 2012: previously the text was “Zurabovich” [2] Names of medical substances are given hereafter in accordance with the classification of drugs adopted in Russia." ]

[ "SECOND SECTION CASE OF TRIBUNSKIY v. UKRAINE (Application no. 30177/02) JUDGMENT STRASBOURG 17 January 2006 FINAL 17/04/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tribunskiy v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrI. Cabral Barreto,MrK.", "Jungwiert,MrV. Butkevych,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 12 December 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 30177/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Nikolay Petrovich Tribunskiy (“the applicant”), on 1 August 2002. 2. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska. 3.", "On 9 September 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1946 and lives in the town of Dniprodzerzhynsk.", "5. In 2000 the applicant instituted proceedings in the Bagaliyskyy District Court of Dniprodzerzhynsk (the “Bagaliyskyy Court”) against the Bagaliyskyy Municipal Housing Enterprise, seeking the recovery of salary arrears. 6. On 18 December 2000 the court found for the applicant and ordered the entity to pay him UAH 2543.49 (around 421 euros – “EUR”). 7.", "On 23 December 2000 the Bagaliyskyy District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings. 8. On 18 June 2002 the Bailiffs’ Service informed the applicant that the judgment was not enforced due to the large number of enforcement proceedings against the debtor and its lack of funds. 9. On 6 June 2002 the Bailiffs’ Service applied to the Bagaliyskyy Court to have the debtor in the enforcement proceedings replaced, as the latter’s property had been transferred to the Dniprodzerzhynsk Housing Municipal Enterprise (the “DHME”) pursuant to the decision of the Dniprodzerzhynsk Town Council.", "10. On 17 June 2002 the court granted the request of the Bailiffs’ Service and ruled that the DHME was responsible for the payment of the judgment debt of 18 December 2000 to the applicant. 11. On 29 September 2004 the DHME transferred the amount of the award to the deposit account of the Bailiffs’ Service. 12.", "On 30 September 2004 the Bailiffs’ Service requested the applicant to provide them with his bank account details in order that they transfer the amount of the award. 13. According to the Government, the applicant failed to provide the Bailiffs with the information requested. 14. The applicant did not contest this submission.", "II. RELEVANT DOMESTIC LAW 15. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). THE LAW I. ADMISSIBILITY 16.", "The applicant complained in substance under Article 6 § 1 of the Convention about the State authorities’ failure to enforce the judgment of the Bagaliyskyy Court of 18 December 2000 in due time. Article 6 § 1 of the Convention provides, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” A. The Government’s preliminary objections 17. The Government submitted that, in line with the Court’s case-law, an applicant who has obtained reparation at the national level for an alleged violation of the Convention can no longer be considered a victim for the purposes of Article 34 of the Convention (see, Marchenko v. Ukraine (dec.), no.", "63520/01, 17 September 2002). Accordingly, as the sum of the award has been deposited with the Bailiffs’ Service and will be transferred to the applicant, provided he informs the Bailiffs about his banking details, the judgment of the Bagaliyskyy Court of 18 December 2000 has been enforced and the applicant can no longer be considered a victim of a violation of his rights under Article 6 § 1. 18. The Government further contended that the applicant had not exhausted domestic remedies as he had not challenged the actions or inactivity of the State Bailiffs’ Service before the domestic courts. 19.", "The Government therefore proposed that the application be declared inadmissible or struck out of the Court’s list of cases. 20. The applicant disagreed. 21. The Court agrees with the Government in that the judgment in the applicant’s favour was enforced in full.", "The Court, however, recalls that it has already dismissed the Government’s similar contentions about the applicant’s victim status and exhaustion of domestic remedies in other non-enforcement cases (see, for instance, the Romashov judgment, cited above, §§ 26, 27, 30-33) in respect of the delay in that enforcement. It finds no reason to reach a different conclusion in the present case. Accordingly, it dismisses the Government’s preliminary objections. 22. The Court considers that the applicant’s complaint under Article 6 § 1 of the Convention raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.", "It finds no ground for declaring this part of the application inadmissible. B. Other complaints 23. The applicant further complained about a violation of Article 2 of the Convention (right to life) on account of the non-enforcement of the judgment in his favour. 24.", "The Court finds that this part of the application is wholly unsubstantiated and must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. II. MERITS 25. In their observations, the Government contended that there had been no violation of Article 6 § 1 of the Convention (as in the case of Romashov, cited above, § 37). 26.", "The applicant did not comment on this. 27. The Court notes that the judgment of the Bagaliyskyy Court of 18 December 2000 remained unenforced for some three years and nine months. 28. The Court recalls that it has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues to the present application (see, for instance, Romashov, cited above, §§ 42-46).", "29. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. There has, accordingly, been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 30.", "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 31. The applicant claimed UAH 2,543.49 (around EUR 421) in respect of pecuniary damage and USD 75,000 (around EUR 61,830) in respect of non-pecuniary damage. 32. The Government contended that the applicant had not substantiated the amounts claimed and submitted that the finding of a violation would constitute sufficient just satisfaction.", "33. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable to award the applicant EUR 1,800 in respect of non-pecuniary damage. B. Costs and expenses 34. The applicant did not submit any claim under this head.", "The Court therefore makes no award. C. Default interest 35. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the applicant’s complaint under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 1,800 (one thousand eight hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 January 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. Costa Registrar President" ]

[ "FOURTH SECTION CASE OF JOHN ANTHONY MIZZI v. MALTA (Application no. 17320/10) JUDGMENT STRASBOURG 22 November 2011 FINAL 22/02/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of John Anthony Mizzi v. Malta, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki, David Thór BjörgvinssonPäivi Hirvelä,George Nicolaou,Ledi Bianku, judges,David Scicluna, ad hoc judge,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "17320/10) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr John Anthony Mizzi (“the applicant”), on 4 March 2010. 2. The applicant was represented by Mr T. Azzopardi, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General. 3.", "The applicant alleged that the domestic court judgments finding him guilty of defamation and ordering him to pay civil damages were in breach of his right to freedom of expression under Article 10 of the Convention. 4. On 26 August 2010 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.", "Mr V. De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Mr David Scicluna to sit as an ad hoc judge (Rule 29 § 1(b)). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1925 and lives in Malta.", "A. Background of the case 7. The applicant is a journalist. On 20 February 1994 The Sunday Times of Malta, a national English language newspaper (“The Times”) published the applicant’s letter to the editor entitled “A Yacht Marina for Xemxija?” The letter, in so far as relevant, read as follows: “Dr Francis Zammit Dimech, Minister of Transport, has been quoted as saying that a yacht marina is being projected for Xemxija, the inner part of St. Paul’s bay. The residents of the seaside village, permanent and occasional, and the fishermen, have not been consulted over what will be an impractical and highly unpopular attempt to bring about further havoc in the area.", "After the war, during the administration of Dr Boffa, permission was given for buildings to be erected on the northern part of the bay because Dr Boffa wanted to build there, and now this has erupted into a conglomeration of high and low-rise constructions of grotesque proportions. Then came the oil tanks and it was quite a relief later to see those go. There was some idea to develop Mistra and one hopes this has evaporated. Now comes this new idea of a marina at Xemxija. When the breakwater at Tal-Veccja was extended, the currents in the bay were diverted so that now silt has settled along the stretch by the West End Hotel.", "Similarly, any breakwater in the bay will further alter the currents. The residents will not welcome the intrusion of yachtsmen and are wondering whether the back up facilities will go. A proper study of the storms in the bay in winter will certainly show though how impractical it is to build a large marina at Xemxija. Besides, one can imagine yachtsman with pegs to their noses from the stench from the drainage outflow which is such a feature of St. Paul’s Bay where the authorities have continually botched the system. Why don’t they try Salina, which is a more sheltered and more practical marina – if in fact there is need for another marina?” B. Defamation proceedings 8.", "On an unspecified date, Mr J. Boffa, the son and heir of the deceased Sir Paul Boffa referred to in the letter (who was Prime Minister of Malta and Head of Government in the post-war era of 1947-50 and who died in 1962), sued the applicant for civil damages, claiming that the letter was defamatory. He argued that the words “Dr Boffa wanted to build there” attributed false and despicable intentions to his father. 9. The applicant pleaded that the action should be dismissed on the ground that a deceased person cannot sue for libel. By a preliminary judgment of 28 June 1996 the Civil Court dismissed this preliminary plea.", "This preliminary decision was upheld by the Court of Appeal on 7 October 1997. 10. The applicant contended, on the merits, that his letter had not stated that Sir Paul Boffa had wanted to build for himself in the specified area. His statement had referred to Sir Paul Boffa’s decision, acting in his role as Prime Minister of the country, to build in the area. Moreover, the letter was not injurious and there had been no mischievous intent, “animus injuriandi”, on the part of the applicant, who was also a family friend of the Boffas.", "11. By a judgment of 21 October 2002 the Civil Court found the letter to be defamatory vis-à-vis Sir Paul Boffa and ordered the applicant to pay Joseph Boffa 700 euros (EUR). It reiterated that a person may have a legal interest even if he or she was not the person to have been defamed, and it threw out the applicant’s explanation of the impugned phrase for the following reasons: from the evidence submitted it transpired that the area close to the Church in Xemxija was indeed a development zone; however, no date could be established as to when the land had been earmarked for such purpose. It further appeared that a company had submitted an application to acquire (tehid) land in Mistra to erect a bulk storage installation for petroleum products. It followed logically, according to the reasoning of the Civil Court, that the applicant had meant that the issuing of building permits during Sir Paul Boffa’s administration had been dependent on his will to build there (on the northern side of the bay of Xemxija), personally.", "This was the meaning which would have been understood by any ordinary right-thinking person. However, the applicant had not been able to prove that any such permits had been issued, or that Sir Paul Boffa had wanted to build there. Thus, since the allegations were untrue, and the applicant had not proved any basis for such an allegation, mischievous intent was presumed. 12. The judgment was upheld by the Court of Appeal on 21 June 2005.", "It reiterated that the statement “during the administration of Dr Boffa, permission was given for buildings to be erected on the northern part of the bay because Dr Boffa wanted to build there” was defamatory as it implied that Dr Boffa had taken advantage of his position as head of the civil administration to build in an area for which planning permission had not previously been granted. This was what a reasonable person would have understood. However, Mr Boffa had proved that his father never owned property in the said area. The Court of Appeal further noted that the applicant had failed to publish any correction or apology after becoming aware that Mr Boffa had suffered from the defamation caused by the publication. C. Constitutional redress proceedings 13.", "The applicant instituted constitutional redress proceedings claiming that there had been a violation of his rights under Articles 6 and 10 of the Convention. 14. On 18 November 2008 the Civil Court, in its constitutional jurisdiction, dismissed his claims on the merits. It considered the evidence produced by the applicant, namely a letter from the editor of The Times which explained the reasons why he disagreed with the court judgment of 21 June 2005, the witness testimony declaring that the relevant area was a building site, his research documents and his statement that he had never referred to Dr Boffa’s wish to build for himself personally. It considered, firstly, that according to established domestic and continental jurisprudence, a descendant of a defamed person did have a right of action.", "It reiterated the lower courts’ findings in relation to the animus injuriandi and confirmed that their decision based on the finding that the applicant’s statement had been untrue could not be considered to be repressive. It held that an ordinary reader would have definitely understood the applicant’s statement to refer to Dr Boffa’s wish to build there personally and thus did cause harm to his reputation. Moreover, the concept of “necessary in a democratic society” did not entail the publishing of falsehoods. As to Article 6, it held that according to the European Court’s case-law, the right to a fair trial did not extend to the failure to cross-examine persons who had not given testimony and whose interests were being represented by the heirs who could, themselves, be cross-examined. Thus, there could be no violation of Articles 6 or 10 of the Convention.", "15. On appeal, by a judgment of 9 October 2009, the Constitutional Court upheld the first-instance judgment and the ordinary court’s reasoning under both Articles 6 and 10. In particular, it rejected the applicant’s contention that he was referring to Dr Boffa in his role as Prime Minister at the relevant time and not in his personal capacity, and that the applicant had never written that Dr Boffa had wanted to build there for his own personal advantage. It further held that the Court of Appeal had correctly applied the relevant principles, in particular the concept of “ordinary reader” and the importance of reputation. II.", "RELEVANT DOMESTIC LAW 16. The pertinent sections of the Press Act, Chapter 248 of the Laws of Malta, in so far as relevant, read as follows: Section 3 “The offences mentioned in this Part of this Act are committed by means of the publication or distribution in Malta of printed matter, from whatsoever place such matter may originate, or by means of any broadcast.” Section 11 “Save as otherwise provided in this Act, whosoever shall, by any means mentioned in section 3, libel any person, shall be liable on conviction to a fine (multa).” Section 23 “Criminal proceedings for any offence under Part II and civil proceedings under Part III of this Act may be instituted against each of the following persons: (a) the author, if he shall have composed the work for the purpose of its being published, or if he shall have consented thereto; (b) the editor; or, if the said persons cannot be identified, (c) the publisher.” Section 27 “Criminal proceedings are independent of civil proceedings. Both proceedings may be instituted at the same time or separately.” Section 28 “(1) In the case of defamation, ... , the object of which is to take away or injure the reputation of any person, the competent civil court may, in addition to the damages which may be due under any law for the time being in force in respect of any actual loss, or injury, grant to the person libelled a sum not exceeding eleven thousand six hundred and forty-six euros and eighty-seven cents (EUR 11,646.87).” 17. Articles 255 and 256 of the Criminal Code, Chapter 9 of the Laws of Malta, read as follows: Article 255 “No proceedings shall be instituted for defamation except on the complaint of the party aggrieved: Provided that where the party aggrieved dies before having made the complaint, or where the offence is committed against the memory of a deceased person, it shall be lawful for the husband or wife, the ascendants, descendants, brothers and sisters, and for the immediate heirs, to make the complaint.” Article 256 “(1) In cases of defamation committed by means of printed matter, the provisions contained in the Press Act shall apply. (2) Where, according to the said Act, proceedings may only be instituted on the complaint of the party aggrieved, the provisions contained in the proviso to the last preceding article shall also apply.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 18. The applicant complained that the domestic court judgments finding him guilty of defamation and ordering him to pay civil damages were in breach of his right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 19. The Government contested that argument. A. Admissibility 20. 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 21.", "The applicant argued that Maltese law, namely section 28 of the Press Act concerning civil actions, did not allow relatives of a deceased person to institute proceedings, unlike in criminal proceedings. This notwithstanding, the domestic courts had allowed this action. 22. The applicant submitted that the domestic courts had utterly twisted his words written in plain English, maybe because they had translated them literally into Maltese, although the phrase would have had exactly the same meaning in both languages. However, his statement, in English, had been clear and it had not included the word “for himself”.", "In consequence, this meaning could not be presumed. Thus, the implication that Dr Boffa had wanted to build there “personally” was a point that the domestic courts had added of their own accord. 23. The applicant submitted that the letter had not been directed at Dr Boffa at all but had meant to show the impracticality of a yacht marina in the area nowadays. The only reference to Dr Boffa had been to him as Prime Minister, more than fifty years ago, at a time when construction in the area had boomed, as also proved before the domestic courts.", "Indeed, it made no sense to extrapolate one innocuous sentence which had nothing to do with the aim of the article as a whole, impute to it a meaning which was not at all evident, and find that that was libellous. This was even more so given that the Prime Minister was in any case a public figure. 24. The applicant alleged that he had offered to make a correction in the newspaper explaining that no such meaning had been intended; however, Joseph Boffa had only been prepared to accept an apology for the defamation suffered, an allegation the applicant had refused to accept. 25.", "Lastly, the applicant considered that the sum he had had to pay in damages had not been insignificant and in any case the interference had definitely not been necessary in a democratic society. Indeed the reasons adduced by the domestic courts had been feeble and could not justify such interference. 26. The Government acknowledged that the order to pay damages had constituted an interference with the applicant’s Article 10 rights. 27.", "However, they contended that the interference was provided for by law. Section 28 of the Press Act and Articles 255 and 256 of the Criminal Code made it foreseeable that a person who committed libel against a deceased person was liable to a civil action under the Press Act. 28. Moreover, the interference had pursued a legitimate aim, namely the protection of the reputation and rights of others, and had been necessary in a democratic society. Making reference to the Court’s case-law, the Government recognised the importance of the role of journalists in imparting information and ideas, but stressed that they were subject to duties and responsibilities in respect of the manner in which they performed their functions and as to what they chose to publish.", "In the present case, the applicant had chosen to publish words, which, according to the Government, an ordinary intelligent reader would have understood to mean that Sir Paul Boffa, when Prime Minister, had arranged for building permits to be issued in Xemxija to further his own personal interest in building in that area and thus casting a shadow of corruption on Dr Boffa’s immediate family, who were ordinary private citizens. The applicant chose to publish this information despite the lack of evidence substantiating its veracity. Moreover, the article had been published in a leading, respectable newspaper where readers would have taken for granted that what had been published was the truth. Furthermore, no correction or rectification had been published by the applicant. 29.", "The Government noted that while the applicant insisted that a different meaning was attributable to the phrase at issue, four separate domestic courts had rejected his arguments. Indeed, the meaning given to it by the applicant was untenable since until the 1960s the area was only viewed as a location for summer residences and it was only much later that it started hosting ordinary residences. While at the relevant post-war time it had been earmarked as a building site, the only application for development had in fact been that by an oil company for construction of tanks and storage purposes. The Government considered that the impugned phrase was a straightforward statement of fact that could only have the meaning given to it by the domestic courts, particularly bearing in mind that the predominantly Maltese-speaking public would assimilate phrases in English and mentally translate them into their mother tongue, Maltese. Lastly, they considered that since the case concerned an interpretation of what the ordinary reader in Malta would have understood, it was not for the Court to re-evaluate the matter, the domestic judge being in a better position to perform such an assessment.", "30. Bearing in mind the low amount of damages awarded to the injured party and the context, namely private civil proceedings, the Government considered that the interference had been justified. 2. The Court’s assessment (a) General principles 31. The Court reiterates that an interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to attain such aim or aims (see Times Newspapers Ltd v. United Kingdom (nos.", "1 and 2), no. 3002/03 and 23676/03, § 37, 10 March 2009). The test of “necessary in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no.", "48898/99, § 39, ECHR 2003-V, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). 32. The Court’s task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. The Court must look at the interference complained of in the light of the case as a whole, including the content of the comment held against the applicant and the context in which it was made (see News Verlags GmbH & Co. KG v. Austria, no.", "31457/96, § 52, ECHR 2000-I, and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 69, ECHR 2004‑XI). In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Aquilina and Others v. Malta, no.", "28040/08, § 41, 14 June 2011). (b) Application in the instant case 33. The Court notes that it is common ground between the parties that the judgments pronounced in the defamation action constituted an interference with the applicant’s right to freedom of expression as protected by Article 10 § 1. 34. The Court considers that the interference was “in accordance with the law”, namely section 28 of the Press Act, read in conjunction with Articles 255 and 256 of the Criminal Code, and that it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.", "It remains to be ascertained whether it was “necessary in a democratic society”. 35. The Court notes that the impugned statement read “Dr Boffa wanted to build there” and that the domestic courts interpreted the statement as meaning that “the Prime Minister at the time wanted to build there for himself”. The Court considers that having attributed one of two meanings in which it could have been understood, it stood to reason that the veracity of the statement, as interpreted by the domestic courts made it very difficult, if not impossible, for the applicant to provide direct corroboration of it (see, mutatis mutandis, Bozhkov v. Bulgaria, no. 3316/04, § 47, 19 April 2011).", "Indeed, in the Court’s view, while it is true that the applicant could have phrased the impugned statement in a more careful manner, the meaning given to it by the applicant, as can be seen from the English text as published, appears to be a reasonable meaning that could be attributed to it by an ordinary, average reader. Furthermore, the letter had been published in English and was therefore directed at an English-speaking public. The Court considers that the evidence put forward by the applicant in the domestic proceedings, together with the fact that the area was eventually built on in the subsequent years constituted a sufficient factual basis for the statement as intended by the applicant, which in the Court’s view did not amount to a serious allegation. The Court’s case-law is clear on the point that the more serious the allegation is, the more solid the factual basis should be (see, for example, Rumyana Ivanova v. Bulgaria, no. 36207/03, § 64, 14 February 2008).", "36. Moreover, even accepting the meaning attributed to the words by the domestic courts, the Court notes that those courts found that mischievous intent was to be presumed, while disregarding factors which could equally be relevant for determining whether or not the applicant had acted in good faith (see, mutatis mutandis, Bozhkov, cited above, § 50). 37. Quite apart from the interpretation given to it by the domestic courts, the Court considers that the statement must be looked at in the light of the overall thrust of the letter. The Court has previously held that the criterion of responsible journalism should recognise the fact that it is the article as a whole that the journalist presents to the public (see Bozhkov, cited above, § 50).", "The Court notes that the impugned statement, whatever its meaning may be, was a mere historic sideline to an article which dealt with a totally different subject matter. It held no prominence in the writing; it was of little significance, was written in the calmest of tones and could hardly be considered as provocative or exaggerated in that specific context. 38. Furthermore, the domestic courts did not give any weight to the fact that the person who they found to have been defamed was a former prime minister, and thus a politician and public figure who was subject to wider limits of acceptable criticism (see Lombardo and Others v. Malta, no. 7333/06, § 54, 24 April 2007) and that the article covered a subject of at least some public interest.", "39. The Court further notes that the said prime minister was deceased at the time the letter was written. Indeed, the person who sued the applicant and to whom damages were awarded was not the defamed person, but his heir. In this respect, although the possibility of bringing such an action existed in the Maltese legal system, like in other countries, and though this has never raised an issue, as such, before the Court (see, for example, Editions Plon v. France, no. 58148/00, § 14, ECHR 2004‑IV, and Hachette Filipacchi Associés v. France, no.", "71111/01, § 10, ECHR 2007‑VII), it is of the view that this element should have been considered by the domestic courts when assessing the proportionality of the interference. Indeed, when considering the harm that may be caused to a person’s reputation, the immediate consequences that come to mind are, inter alia, loss of opportunities, private or professional, or loss of standing in the eyes of the community. The Court notes that, in the present case, the defamed individual passed away more than three decades before the impugned statement was published and any damage that may have been caused to the deceased’s reputation cannot be considered serious in the circumstances (see Editions Plon, cited above, § 53 and, conversely, § 47). The Court observes that the domestic courts gave no weight to this factor. 40.", "In conclusion, the Court considers that the domestic courts’ decisions, narrow in scope, reiterating what, in their view, was implied by the impugned statement, and upholding the right of reputation without explaining why this outweighed the applicant’s freedom of expression and without taking into consideration other relevant factors, cannot be considered to fulfil the obligation of the courts to adduce “relevant and sufficient” reasons which could justify the interference at issue. 41. The fact that the proceedings were civil rather than criminal in nature and that the final award was relatively modest does not detract from the fact that the standards applied by the courts were not compatible with the principles embodied in Article 10. 42. There has accordingly been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 43. The applicant complained of a violation of his right to a fair trial, in that he could not cross-examine his accuser who was in fact deceased. He relied on Article 6 § 3 (d) of the Convention, which provides as follows: “3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 44.", "The Court notes that the proceedings complained of did not concern the determination of any criminal charge against the applicant (see, mutatis mutandis, Walsh v. the United Kingdom (dec.), no. 43384/05, 21 November 2006). It follows that Article 6 § 3 (d) does not apply, and the complaint is incompatible ratione materiae with the provisions of the Convention and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 45. Even viewed against the general fairness requirements of Article 6 § 1, the Court finds that in the circumstances of the present case the applicant was not denied a fair trial.", "It follows that the complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. 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 47.", "The applicant claimed 6,000 euros (EUR) in respect of non-pecuniary damage and EUR 700 in respect of pecuniary damage, representing the amount he was made to pay in civil damages. 48. The Government objected to these claims particularly considering the trivial amount of civil damages the applicant was made to pay. 49. The Court reiterates that under its case-law a sum paid as reparation for damage is only recoverable if a causal link between the violation of the Convention and the damage sustained is established.", "Thus, in the present case, the award of damages which the applicant had to pay to Joseph Boffa pursuant to the domestic courts decisions could be taken into account (see, mutatis mutandis, Thoma v. Luxembourg, no. 38432/97, § 71, ECHR 2001-III). Thus, the Court awards the applicant EUR 700, in respect of pecuniary damage and EUR 4,000 in respect of non-pecuniary damage. B. Costs and expenses 50.", "The applicant also claimed EUR 5,066.38, namely EUR 4,293.55 as per the submitted bill of costs and EUR 772.83 Value Added Tax (VAT), for the costs and expenses incurred before the domestic courts and EUR 2,360 including VAT for professional fees incurred before the Court. 51. The Government considered that the sum of EUR 1,500 for the proceedings before this Court would suffice. As to the sums claimed for the domestic proceedings, they submitted that VAT should not be included as it was payable only on professional fees and not registry expenses. Moreover, they contended that the applicant had to prove that he had paid the amount of EUR 1,197.72 representing the Government’s expenses in the domestic proceedings.", "52. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court firstly notes that even assuming the Government’s expenses have not yet been paid, these expenses remain due. Thus, in the present case, regard being had to the fact that certain of the applicant’s complaints have been declared inadmissible, to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,300 covering costs under all heads. C. Default interest 53.", "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. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint concerning Article 10 of the Convention admissible and the remainder of the application inadmissible; 2. Holds by six votes to one that there has been a violation of Article 10 of the Convention; 3. Holds by six votes to one (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts: (i) EUR 700 (seven hundred euros) in respect of pecuniary damage; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 5,300 (five thousand three hundred euros), plus any tax that may be chargeable, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 November 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas Bratza Deputy Registrar President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) concurring opinion of Judge Bratza; (b) dissenting opinion of Judge Scicluna. N.B. F.A.", "CONCURRING OPINION OF JUDGE BRATZA 1. I share the view of the majority of the Chamber that the applicant’s rights under Article 10 of the Convention were violated in the present case and would add only a few words on what I regard as one of the important grounds for the Chamber’s finding of violation, namely the fact that Sir Paul Boffa, who was held to have been defamed in the applicant’s letter, had died before the letter was written. 2. As someone originating from a jurisdiction in which a cause of action for defamation does not survive the death of the alleged wrongdoer or that of the defamed person himself, I admit to having difficulty with the idea that an action in defamation can lie at the instance of descendants of an individual years, and even decades, after the death of the person concerned. I accept, however, that in other jurisdictions, including Malta, such a cause of action exists and has not, as such, been questioned in the Court’s case-law.", "3. The two cases referred to in the judgment were not in fact cases of defamation. Both were cases in which the impugned publication (in Editions Plon, the disclosure of confidential medical details of a head of state who had recently died and, in Hachette Filipacchi Associés, the publication of a photograph of the mutilated body of a political figure, shortly after his murder and funeral) had a direct and immediate impact on the private and family lives of the immediate family of the deceased. 4. In the case of defamation, the situation appears to me to be different: the defamatory statement, while doubtless affecting the reputation of the deceased ancestor, has in my view no direct impact on the private or family life of the descendants.", "The exposure of an individual in such a case to an action in damages for defaming the deceased ancestor of a family is likely to have a seriously chilling effect on the right of freedom of expression, particularly in a case where many years have passed since the death and the burden of proving the truth of the allegation lies on the defendant in any such action. In my view, even if such an action is in principle compatible with the requirements of Article 10, when striking the balance between the competing interests, the weight to be attached to the reputation of the deceased individual must diminish with the passing of the years and that attaching to freedom of expression must correspondingly increase. 5. As noted in the judgment, Sir Paul Boffa, who was found to have been defamed in the applicant’s letter, died more than three decades before the impugned statement was published. While I readily accept that he was a greatly respected figure in Malta, I consider that any damage that may have been caused to his reputation by the letter was in the circumstances outweighed by the freedom of expression of the applicant guaranteed by Article 10 of the Convention.", "DISSENTING OPINION OF JUDGE SCICLUNA 1. Having carefully examined the letter in question which purportedly deals with the topic of the bulding of a yacht marina at Xemxija, the paragraph in which the writer refers to Dr Boffa sticks out because of the allegation made in it. 2. In my opinion the interpretation given by the national courts to this paragraph was the correct one. Saying that permission was given during the Boffa administration for buildings to be built “because Dr Boffa wanted to build there” means that Dr Boffa had an interest in allowing the construction of buildings in the area.", "It cannot be understood as meaning that it was his administration that wanted to develop the area. Indeed the writer says that permission to build was given “during the administration of Dr Boffa” but then that it was given “because Dr Boffa wanted to build there”. 3. I disagree that any other interpretation could be given to the statement made by the applicant in his letter. If a different meaning was meant to be given by the applicant (viz.", "that Dr Boffa was in favour of the area being built up – “ried li jinbena” and not “ried jibni”) then that is what he should have said. 4. I agree with the principle enunciated in paragraph 38 of the judgment but the fact that the reference was to a former prime minister is in this case besides the point given that the applicant himself says that the national courts misunderstood what he had written. 5. The fact that Dr Boffa passed away more than three decades ago does not mean that any damage cannot be considered serious.", "Dr Boffa is still considered a highly respectable and honest politician and his heirs have an interest in upholding not only his honour, his reputation and his name but also that of the family as any defamation almost inevitably rubs off onto the family and this can lead to moral and material damage. These reasons, which were also indicated by the national courts, should be considered as relevant and sufficient reasons to justify the interference with the applicant’s right of freedom of expression." ]

[ "FIFTH SECTION CASE OF ILIYA STEFANOV v. BULGARIA (Application no. 65755/01) JUDGMENT STRASBOURG 22 May 2008 FINAL 22/08/2008 This judgment may be subject to editorial revision. In the case of Iliya Stefanov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President,Snejana Botoucharova,Karel Jungwiert,Rait Maruste,Renate Jaeger,Mark Villiger,Isabelle Berro‑Lefèvre, judges,and Claudia Westerdiek, Section Registrar, Having deliberated in private on 29 April 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 65755/01) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Iliya Pavlov Stefanov, a Bulgarian national born in 1967 and living in Sofia (“the applicant”), on 19 December 2000.", "2. The applicant was represented before the Court by Mr N. Rounevski, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. 3. The applicant alleged, in particular, that the search and seizure carried out in his office had been unlawful and unjustified, that his mobile telephone had been unlawfully tapped, and that he had not had effective remedies in these respects.", "4. On 3 October 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant is a practising lawyer. He has been a member of the Sofia bar since 1994. His office is located in the centre of Sofia. 6. On 23 November 2000 a Mr R.S.", "lodged a complaint with the Second Regional Police Department in Sofia. He alleged that the previous day, 22 November 2000, he had been abducted by several persons working for his former employer, a company called MIG Group AD. He had been taken to a certain Mr K.G., an employee of that company, who had threatened him and his family with violence on account of his failure to repay certain money which he owed to the company. He had later been taken to the applicant’s office, where he had been coerced into signing written promises to pay money, as well as a contract to hand over his car. All these documents had been drafted by the applicant.", "7. On 24 November 2000 Mr R.S.’s complaint was referred to the First Regional Police Department in Sofia, which on 29 November 2000 opened a criminal investigation against an unknown perpetrator on allegations of extortion contrary to Article 214 § 1 of the 1968 Criminal Code. 8. At about midday on 29 November 2000 the police brought Mr K.G. and two other individuals in for questioning.", "The applicant, who was the legal counsel of MIG Group AD, was informed of Mr K.G.’s arrest. He called the police officer in charge of the case, offering to assist by going to the police station. 9. The applicant went to the police station at about 2 p.m. on 29 November 2000. Once on the premises, he was taken to a room where he saw several other persons called for questioning, and was apparently not allowed to leave.", "However, no warrant was issued for his arrest, whereas at 4 p.m. the police decided to detain Mr K.G. and the two other individuals for twenty‑four hours. 10. Between 6.30 p.m. and 7 p.m. the same day the officer in charge of the investigation interviewed the applicant as a witness. The applicant said that he knew Mr R.S., because he had been an employee of MIG Group AD.", "However, he said that he had not seen him on 22 November 2000 and completely denied the allegations that on that day Mr R.S. had been coerced into signing certain documents in the applicant’s office. He also said that he had a computer in his office and that Mr K.G. was a client of his. After the interview the applicant was allowed to leave the police station.", "11. At 8 p.m. the same day several police officers sealed the door of the applicant’s office and left a guard in front of the door. 12. The applicant alleged that shortly after that his mobile telephone was tapped, as evidenced by the constant noise on the line. The Government denied this, saying that the investigation case file did not contain a single document relating to such tapping.", "In support they produced an inventory of all documents in the file. 13. At 2.40 p.m. the next day, 30 November 2000, the police officer in charge of the case organised a confrontation between the applicant and Mr R.S., in their capacity as witnesses, with a view to eliminating the discrepancies between their versions of the events of 22 November 2000. Both stuck to their original accounts. The confrontation ended at 2.45 p.m. 14.", "At 4 p.m. on 30 November 2000 the police officer in charge of the case applied to the Sofia District Court for a search warrant for the applicant’s office. He said, without giving further particulars, that on the basis of the available evidence there were grounds to believe that objects and documents which would be relevant for the investigation would be found there. He also said that the proposed search would be conducted on the same day. 15. At approximately 4.30 p.m. that day the on‑duty judge at the Sofia District Court, having reviewed the evidence gathered up to that point, issued a search warrant for the applicant’s office.", "She held that there existed evidence which was sufficient to enable the court to make a plausible supposition that the office contained objects which would be relevant to the case. In particular, the victim of the alleged offence had given information about the office and had asserted that evidence of that offence could be found there. 16. Between 6.30 p.m. and 9.40 p.m. the same day the police officer in charge of the case, helped by two other police officers, executed the search warrant for the applicant’s office. They seized his computer, monitor, printer and other peripherals, thirty‑three floppy disks, a piece of paper noting five motor vehicle registration numbers, and a certificate from a language school saying that Mr R.S.", "had completed a course in English and German. The computer and the disks were found on a desk opposite the front door, and the papers were found in a filing cabinet beside a window. The search was carried out in the presence of two certifying witnesses, neighbours of the applicant. The applicant arrived on the premises after the beginning of the search. The police drew up a record containing an inventory of the seized items.", "The record was signed without comment by the certifying witnesses. The applicant wrote that he objected to the search, as it had been carried out in breach of the 1991 Bar Act (see paragraph 25 below). After the search the applicant’s office was sealed. 17. On 6 December 2000 the officer in charge of the case asked an expert to determine whether the seized computer’s hard drive and the floppy disks had any files on them relating to the investigation.", "He delivered the computer with all its peripherals and the floppy disks to the expert. On 15 December 2000 the expert informed the officer that, despite having searched the content of the hard drive and of the floppy disks with a special programme using keywords, she had found no such files. 18. In the meantime, on 13 December 2000, the applicant asked the prosecution authorities to return the seized items to him. 19.", "On 5 February 2001 a prosecutor of the Sofia District Prosecutor’s Office decided to stay the investigation. He reasoned that despite the steps which had been taken, the identity of the alleged perpetrator had not been established. He also ordered that the applicant’s computer, monitor, printer, peripherals and floppy disks be returned to him. 20. On 2 March 2001 the applicant asked the chairman of the Sofia City Court to inform him whether between 1 October and 31 December 2000 that court had issued a warrant for the tapping of any of his telephones.", "In a letter of 6 March 2001 the chairman of the Sofia City Court told the applicant that his request had been left unexamined, because his legal interest in the matter should have been satisfied by the existence of the 1997 Special Intelligence Means Act and Article 111 et seq. of the 1974 Code of Criminal Procedure (“the CCP”) (see paragraph 26 below). II. RELEVANT DOMESTIC LAW AND PRACTICE A. Search and seizure in the context of criminal proceedings 21.", "Article 134 § 1 of the CCP, as in force at the material time, provided that where there existed sufficient grounds to believe that certain premises contained objects or documents which might be relevant to a criminal investigation, the authorities could carry out a search and seizure there. 22. According to Article 135 § 1 of the CCP, as in force at the material time, during the preliminary investigation a search and seizure could be carried out only pursuant to a warrant issued by a judge of the competent first‑instance court. The warrant was issued in ex parte proceedings, without notification or participation of the persons concerned. An exception to the warrant requirement was only possible in exigent circumstances; in that case the record of the search had to be produced for approval before a judge within twenty‑four hours (Article 135 § 2 of the CCP).", "23. As a rule, the search and seizure had to be carried out during the day and in the presence of the person using the premises, as well as of two certifying witnesses (Articles 136 § 1 and 137 § 1 of the CCP). The officers carrying out the search could not undertake any actions which were not necessary for the search (Article 137 § 4 of the CCP). 24. In April 2006 these provisions were replaced by Articles 159‑63 of the 2005 Code of Criminal Procedure.", "25. Section 18(1) of the 1991 Bar Act, presently superseded by section 33(1) of the 2004 Bar Act, provided that a lawyer’s files and papers were inviolable and could not be checked or seized. B. Interception of telephone communications 26. The domestic law regulating secret surveillance is described in detail in paragraphs 7‑51 of the Court’s judgment in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007).", "C. Witnesses in criminal proceedings 27. Article 95 § 1 of the CCP, as in force at the material time, provided that witnesses in criminal proceedings had a duty to appear for questioning when called and to remain at the disposal of the authorities until necessary for this purpose. D. The 1988 State Responsibility for Damage Act 28. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act („Закон за отговорността на държавата за вреди, причинени на граждани“ – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, „Закон за отговорността на държавата и общините за вреди“), as in force at the material time, provided that the State was liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation’s case‑law, the actions of the investigation and the prosecution authorities in the context of a criminal investigation do not amount to administrative action and they are therefore not liable under section 1 of the Act (реш.", "№ 615 от 10 юли 2001 г. на ВКС по гр. д. № 1814/2000 г.; тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д.", "№ 3/2004 г., ОСГК). 29. Section 2 of the Act provides for liability of the investigation and prosecution authorities and the courts in six situations: unlawful pre‑trial detention; bringing of charges or conviction, if the proceedings have later been abandoned or if the conviction has been overturned; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION 30.", "The applicant alleged that the search and seizure carried out in his office had not been lawful and necessary in a democratic society. He also alleged that that the authorities had tapped his mobile telephone. He relied on Article 8 of the Convention, which provides, in so far as relevant: “1. Everyone has the right to respect for his private ... life, his home and his correspondence. 2.", "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The search and seizure in the applicant’s office 1. The parties’ submissions 31. The Government submitted that the interference with the applicant’s rights under Article 8 of the Convention had had a legal basis in Articles 32, 33 and 34 of the Constitution of 1991 and the relevant provisions of the CCP, which were fully in line with the requirements of the Convention. The interference had furthermore pursued a legitimate aim and had been necessary for its attainment.", "The search in the applicant’s office had been directly related to the needs of the investigation, as the objects found and seized there had had a direct link with the offence under investigation. Moreover, both the applicant and two independent observers – neighbours who had had no interest in the outcome of the case – had been present during the search. The intrusion in the applicant’s privacy had been kept to a minimum: the contents of his computer’s hard drive and of the seized disks had been explored through a special piece of software using keywords, which meant that the contents of his electronic documents had not been checked in full. There was no indication that the information obtained had been revealed to a third party, copied or improperly used. Finally, the interference had not lasted unreasonably long, as the computer had been given back to the applicant two months after its seizure.", "32. The applicant submitted that the search and seizure, which had been widely reported in the newspapers, had seriously prejudiced his professional reputation. They had been effected in breach of section 18(1) of the 1991 Bar Act, which protected the professional secrecy of lawyers. Having been prompted solely by the statements of Mr R.S., they had not been based on sufficient evidence. They had moreover disproportionately impinged not only on his professional secrecy, but also on his private life – the seized computer contained personal letters, emails, articles written by him and an almost completed book of essays and poems.", "Seeing that the computer had remained in the hands of the police for a significant amount of time, although the entire contents of its hard drive could have been copied in ten minutes, any of these could have been read by police personnel. The seizure of electronic data was all the more unnecessary on account of the fact that at the relevant time it was not possible to introduce it as evidence in court. 2. The Court’s assessment A. Admissibility 33. The Court considers 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 34. According to the Court’s case‑law, the search of a lawyer’s office, including, as in the present case, electronic data, amounts to an interference with his “private life”, “home” and “correspondence” (see Niemietz v. Germany, judgment of 16 December 1992, Series A no.", "251‑B, pp. 33‑35, §§ 29‑33; Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002-VIII; Sallinen and Others v. Finland, no. 50882/99, §§ 70‑72, 27 September 2005; and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 43‑45, ECHR 2007‑...).", "35. Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to achieve those aims. 36. Concerning the first of these requirements, the Court notes that section 18(1) of the 1991 Bar Act, as in force at the relevant time, provided that a lawyer’s files and papers were inviolable and could not be checked or seized (see paragraph 25 above). It does not seem that there exists any reported case‑law clarifying the exact purview of this provision and, in particular, whether it prohibits the removal of material covered by legal professional privilege under all circumstances.", "It is therefore open to doubt whether the search and seizure were “in accordance with the law”. However, the Court does not find it necessary to determine this point, as, for the reasons which follow, it considers that these measures were incompatible with Article 8 of the Convention in other respects (see Funke v. France, judgment of 25 February 1993, Series A no. 256‑A, p. 23, § 51; Crémieux v. France, judgment of 25 February 1993, Series A no. 256‑B, p. 61, § 34; and Miailhe v. France (no. 1), judgment of 25 February 1993, Series A no.", "256‑C, p. 88, § 32). 37. The Court observes that the search and seizure were ordered in the context of a criminal investigation opened pursuant to allegations of extortion. They therefore served a legitimate aim, namely the prevention of crime. 38.", "To determine whether these measures were “necessary in a democratic society”, the Court has to explore the availability of effective safeguards against abuse or arbitrariness under domestic law and check how those safeguards operated in the specific case under examination. Elements taken into consideration in this regard are the severity of the offence in connection with which the search and seizure have been effected, whether they have been carried out pursuant to a warrant issued by a judge or a judicial officer – or subjected to after‑the‑fact judicial scrutiny –, whether the warrant was based on reasonable suspicion and whether its scope was reasonably limited. The Court must also review the manner in which the search has been executed, and – where a lawyer’s office is concerned – whether it has been carried out in the presence of an independent observer to ensure that material subject to legal professional privilege is not removed. The Court must finally take into account the extent of the possible repercussions on the work and the reputation of the persons affected by the search (see Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, pp. 2893‑94, § 45; Buck v. Germany, no.", "41604/98, § 45, ECHR 2005‑IV; Smirnov v. Russia, no. 71362/01, § 44, ECHR 2007‑...; and Wieser and Bicos Beteiligungen GmbH, cited above, § 57). 39. Applying these principles to the present case, the Court first observes that under the CCP searches and seizures must, as a rule, be carried out pursuant to a judicial warrant (see paragraph 22 above). Indeed, in the instant case the search was effected under a warrant issued by the Sofia District Court (see paragraph 15 above).", "The Court does not consider that the fact that the warrant was obtained in an ex parte procedure was problematic in itself (see Tamosius, cited above). However, the mere fact that an application for a warrant has been subject to judicial scrutiny will not in itself necessarily amount to a sufficient safeguard against abuse. The Court must rather examine the particular circumstances and evaluate whether the legal framework and the limits on the powers exercised were an adequate protection against arbitrary interference by the authorities (see Cronin v. the United Kingdom (dec.), no. 15848/03, 6 January 2004). 40.", "The Court also notes that the police applied for a search warrant after obtaining statements from several witnesses, including the victim of the alleged offence and the applicant (see paragraphs 6, 8, 10 and 13 above). The information which they had elicited from these statements was capable of giving rise to the belief that extortion had been committed in the applicant’s office. It is true that the application for a warrant made no mention of any specific facts. However, the judge to whom the application was made was able review the evidence gathered up to that point, and in her decision made an express reference to Mr R.S.’s statement (see paragraph 15 above). The Court is therefore satisfied that the warrant was based on a reasonable suspicion.", "41. However, the Court notes that neither the application for its issue nor the warrant itself specified what items and documents were expected to be found in the applicant’s office, or how they would be relevant to the investigation. Moreover, in issuing the warrant the judge did not touch at all upon the issue of whether privileged material was to be removed. According to the Court’s case‑law, search warrants have to be drafted, as far as practicable, in a manner calculated to keep their impact within reasonable bounds (see Van Rossem v. Belgium, no. 41872/98, § 45, 9 December 2004).", "This is all the more important in cases where the premises searched are the office of a lawyer, which as a rule contains material which is subject to legal professional privilege (see Niemietz, cited above, p. 35‑36, § 37). The Court therefore finds that, in the circumstances, the warrant was drawn in overly broad terms and was thus not capable of minimising the interference with the applicant’s Article 8 rights and his professional secrecy. The Court is well aware that elaborate reasoning may prove hard to achieve in urgent situations. However, by the time the police applied for a search warrant they had already sealed the applicant’s office (see paragraph 11 above), thus obviating the risk of spoliation of evidence. The Court does not therefore consider that in the instant case a more thorough discussion of these matters would have been too onerous, especially considering that section 18(1) of the 1991 Bar Act was intended to provide a safeguard in this regard (see paragraph 25 above).", "42. The Court further observes that the warrant’s excessive breadth was reflected in the way in which it was executed. While there is nothing in the facts to suggest that papers covered by legal professional privilege were touched upon during the search, it should be noted that the police removed the applicant’s entire computer, including its peripherals, as well as all floppy disks which they found in his office (see paragraph 16 above). Seeing that the computer was evidently being used by the applicant for his work, it is natural to suppose that its hard drive, as well as the floppy disks, contained material which was covered by legal professional privilege. It is true that later the expert used keywords to sift through the data they contained, which somewhat limited the intrusion.", "However, this happened several days after the search, after the computer and the floppy disks had been indiscriminately removed from the applicant’s office (see paragraph 17 above), whereas no safeguards existed to ensure that during the intervening period the entire contents of the hard drive and the floppy disks were not inspected or copied. This leads the Court to conclude that the search impinged on the applicant’s professional secrecy to an extent that was disproportionate in the circumstances (see Niemietz, pp. 35‑36, § 37; Smirnov, § 48; and Wieser and Bicos Beteiligungen GmbH, §§ 63 and 65 in limine, all cited above). It should also be noted that the computer, including all its peripheral devices, was kept by the authorities for more than two months: it was seized on 30 November 2000, checked by an expert before 15 December 2000, and then kept until the proceedings were stayed on 5 February 2001 (see paragraphs 16, 17 and 19 above). In the Court’s view, this must have had a negative impact on the applicant’s work, whereas it is hard to conceive how keeping the computer after 15 December 2000 was conducive to the investigation’s goals.", "43. In addition, the Court notes that, while the search was carried out in the presence of two certifying witnesses, they were neighbours who were not legally qualified (see paragraph 16 above). This may be considered problematic, as this lack of legal qualification made it highly unlikely that these observers were truly capable of identifying, independently of the investigation team, which materials were covered by legal professional privilege, with the result that they did not provide an effective safeguard against excessive intrusion by the police into the applicant’s professional secrecy (see, as examples to the contrary, Tamosius; and Wieser and Bicos Beteiligungen GmbH, §§ 60 (d) and 62, both cited above). This was especially true in respect of the electronic data seized by the police, as it does not seem that any sort of sifting procedure was followed during the search (see Wieser and Bicos Beteiligungen GmbH, cited above, § 63). 44.", "Finally, the Court observes that under Bulgarian law the applicant had no means of contesting the lawfulness of the warrant or of its execution. Neither the CCP nor any other statute contained provisions to such effect, whereas the 1988 State Responsibility for Damage Act envisages only limited grounds for liability, which do not include the issuing or execution of search warrants (see paragraphs 28 and 29 above; and, as examples to the contrary, Buck, § 46; and Smirnov, § 45 in fine, both cited above; as well as Chappell v. the United Kingdom, judgment of 30 March 1989, Series A no. 152‑A, p. 25, § 60 in fine). 45. In the light of the above, the Court concludes that the shortcomings in the procedure followed were such that the search and seizure carried out in the applicant’s office can be regarded as disproportionate to the legitimate aim pursued.", "There has therefore been a violation of Article 8 of the Convention. B. The alleged tapping of the applicant’s mobile telephone 1. The parties’ submissions 46. The Government submitted that the applicant’s assertion that his mobile telephone had been tapped was not corroborated by a single piece of evidence.", "If the authorities wished to tap a telephone, they had to obtain an authorisation in accordance with a special procedure laid down in the 1997 Special Surveillance Means Act. This procedure required a number of documents to be created. However, having checked the case file of the investigation against the applicant, the Government had not found any document warranting a conclusion that his mobile telephone communications had been intercepted for evidence‑gathering purposes. 47. The applicant said that a tap had been put on his telephone immediately after his office had been sealed, as evidenced by the disturbances on the line.", "He had had no way of confirming or dispelling his misgivings in this regard, as under Bulgarian law such information could not be released. He also submitted that if there had been such tapping, it had been unlawful, because he had been merely a witness and the authorities had not had sufficient material to entertain a reasonable suspicion against him. In view of this, and of the applicant’s capacity as a lawyer, it had clearly not been necessary in a democratic society to intercept his telephone communications. He concluded that these circumstances had amounted to a breach of Article 8. 2.", "The Court’s assessment 48. Telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 (see, as a recent authority, Weber and Saravia v. Germany (dec.), no. 54934/00, § 77, ECHR 2006‑XI, with further references). Article 8 is therefore applicable. However, the Court must also determine whether there has been an interference with the applicant’s rights under this provision.", "49. In cases where the applicants assert that the mere existence of laws empowering the authorities to secretly monitor their communications amounts to an interference with their Article 8 rights, the Court does not require proof that an actual interception of communications has taken place (see Klass and Others v. Germany, judgment of 6 September 1978, Series A no. 28, pp. 16‑20, §§ 30‑38; Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, p. 31, § 64; Weber and Saravia, cited above, §§ 76‑79; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 59).", "However, where – as here – the gist of the applicant’s complaint is not that his Article 8 rights have been threatened by the very existence of laws permitting secret surveillance, but instead that measures of surveillance have actually been applied to him, the Court must be satisfied that there is a reasonable likelihood that some such measures have been applied (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports 1997‑III, pp. 1016‑17, §§ 47 and 48, and pp. 1018‑20, §§ 53‑60). 50. To assess whether such a reasonable likelihood has been established, the Court will not confine its examination to the existence of direct proof of covert monitoring, which by definition would be extremely difficult to come by, but will look at the totality of the circumstances of the case.", "51. In the instant case, the Court observes that the only element which tends to suggest that calls made from the applicant’s mobile telephone have been intercepted is his allegation that there were disturbances on his line on the evening of 29 November 2000 (see paragraph 12 above). However, such disturbances are not necessarily indicative of tapping and cannot of themselves warrant a conclusion that covert monitoring has taken place. It is true that when the applicant later enquired of the chairman of the Sofia City Court whether tapping warrants had been issued against him, the latter refused to give him that information (see paragraph 20 above). It is also true that Bulgarian law, as construed by the Supreme Administrative Court, expressly prohibits the disclosure of information as to whether a person has been subjected to secret surveillance or whether warrants have been issued for this purpose, with the result that unless they are subsequently prosecuted on the basis of the material gathered through covert surveillance, or unless there has been a leak of information, the persons concerned cannot find out whether they have ever been monitored (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 91).", "However, in view of the overall situation obtaining in the present case, the categorical denial by the Government that covert surveillance has taken place, and the lack of any documents relating to surveillance measures in the investigation case file (see paragraphs 12 and 46 above), the Court does not find it established that there has been an interference with the applicant’s rights to respect for his private life and correspondence in relation to his mobile telephone. 52. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION 53.", "The applicant alleged he had been denied effective remedies for his complaints under Article 8 of the Convention. He relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 54. The Government did not touch upon these complaints in their observations. 55.", "The applicant said that despite the obvious breaches of his Convention rights, he had had no avenue of redress and no possibility of obtaining compensation. The decision of the Sofia District Court to issue a search warrant for his office had not been subject to appeal, and the actions of the police during the search had not been amenable to any form of scrutiny either. B. The Court’s assessment 56. The effect of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision.", "However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford, p. 1020, § 64; and Camenzind, pp. 2896‑97, § 53, both cited above). 1. The search and seizure in the applicant’s office 57. Having regard to its findings under Article 8 in relation to the search and seizure (see paragraphs 34‑45 above), the Court considers that the complaint in this respect was arguable.", "It accordingly finds that it is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible, and the Court must determine whether Bulgarian law afforded the applicant an effective remedy in this respect. 58. The Court would stress at the outset that the fact that the applicant has never been formally charged, prosecuted or tried in relation to the material obtained during the search is of no consequence for his complaint under Article 13. Even if the proceedings, which were stayed in 2001, are eventually discontinued and do not produce any negative consequences for him, this will not amount to appropriate relief for his complaint under Article 8 (see, mutatis mutandis, Khan v. the United Kingdom, no.", "35394/97, § 44, ECHR 2000‑V; and P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001‑IX). 59.", "While the Court does not consider that the notion of an effective remedy in this context presupposes the possibility of challenging the issuing of the warrant prior to the search (see, mutatis mutandis, Tamosius, cited above), it notes that the Government did not point to any avenue of redress which the applicant could have used to vindicate his Article 8 rights, nor did they refer to any relevant domestic court judgments or decisions. No provision of the CCP, or of any other Bulgarian law, lays down a procedure whereby a person can contest the lawfulness of a search or seizure and obtain redress in case they have been unlawfully ordered or executed. Such claims manifestly fall outside the purview of sections 1 and 2 of the 1988 State Responsibility for Damage Act, which envisage only limited grounds for liability (see paragraphs 28 and 29 above). 60. There has therefore been a violation of Article 13 of the Convention in relation to the search and seizure carried out in the applicant’s office.", "2. The alleged tapping of the applicant’s mobile telephone 61. The Court notes that on the basis of the material adduced by the parties it did not find it established that there has been an interference with the applicant’s rights to respect for his private life and correspondence in relation to his mobile telephone, and accordingly found that his complaint in this regard was manifestly ill‑founded (see paragraphs 48‑52 above). It follows that the applicant does not have an “arguable” claim in this regard (see Halford, cited above, pp. 1021‑22, §§ 69 and 70).", "62. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Alleged violation of Article 3 of the Convention 63.", "The applicant alleged that the search and seizure in his office and its sealing had amounted to degrading treatment. He said that these events had been widely publicised in the press and seen by several of his clients, which had had a negative impact on his professional reputation. He relied on Article 3 of the Convention, which provides, as relevant: “No one shall be subjected to torture or to inhuman or degrading treatment ...” 64. The Court observes that, for treatment to be “degrading”, and in breach of Article 3, the humiliation or debasement involved must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no.", "247‑C, p. 59, § 30). The Court has consistently stressed that the suffering and humiliation involved must go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000‑XI; and Jalloh v. Germany [GC], no. 54810/00, § 68 in fine, ECHR 2006‑IX). Thus, being remanded in custody does not in itself raise an issue under Article 3 (see Kudła, cited above, § 93).", "Nor does the taking of blood or saliva samples against a suspect’s will attain the minimum level of severity to qualify as inhuman and degrading treatment (see Schmidt v. Germany (dec.), no. 32352/02, 5 January 2006). 65. Applying this test to the circumstances of the present case, the Court finds that, while the search and the seizure carried out in the applicant’s office may have impinged on his professional reputation, they were clearly below the minimum level of severity required to bring Article 3 into play. 66.", "It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Alleged violations of Article 5 §§ 1 and 5 of the Convention 67. The applicant complained under Article 5 § 1 of the Convention that he had been unlawfully deprived of his liberty for several hours on 29 November 2000. He also complained under Article 5 § 5 that he could not obtain compensation for this.", "68. Article 5 of the Convention provides, as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (b) the lawful arrest or detention of a person for non‑compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 69.", "The applicant said that on 29 November 2000 he had been detained in the absence of any reasonable suspicion of him having committed an offence. The fact that he had gone to the police station voluntarily did not mean that he had surrendered his right to liberty. What made the situation particularly grave was his position as a lawyer. 70. Concerning the complaint under Article 5 § 1, the Court observes at the outset that the applicant did not try to challenge his alleged deprivation of liberty in any domestic forum.", "The question thus arises whether he has exhausted domestic remedies, as required under Article 35 § 1. However, the Court will not pursue this matter, as it considers that the complaint is in any event manifestly ill-founded for the reasons set out below. 71. The second question is whether the applicant was “deprived of his liberty” and whether Article 5 is thus applicable. On this point, the Court notes that the applicant arrived at the police station at about 2 p.m. on 29 November 2000.", "Shortly after that he was taken to a room where several other persons were awaiting questioning, and was made aware that he was not free to leave the premises. He was interviewed as a witness between 6.30 p.m. and 7 p.m. and then allowed to leave (see paragraphs 9 and 10 above). Under the Convention organs’ case‑law, the determination whether there has been a deprivation of liberty starts with the specific situation of the individual concerned. Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question (see, among many other authorities, Guenat v. Switzerland, no. 24722/94, Commission decision of 10 April 1995, Decisions and Reports (DR) 81‑A, p. 130, at p. 134; and, more recently, I.I.", "v. Bulgaria, no. 44082/98, § 86, 9 June 2005). Furthermore, Article 5 § 1 applies to deprivations of liberty of even a very short duration (see X v. Austria, no. 8278/78, Commission decision of 13 December 1979, DR 18, p. 154, at p. 156; and Guenat, cited above). However, the Court does not need to resolve this issue in the present case, as even assuming that the applicant was deprived of his liberty, and that Article 5 was thus applicable, it is satisfied that this deprivation of liberty was justified under paragraph 1 (b) of this provision.", "72. Under the second leg of sub‑paragraph (b) of Article 5 § 1, an individual may be arrested and detained to secure “the fulfilment of any obligation prescribed by law”. The Convention organs have held that this obligation, while not necessarily antecedent in all cases, should not be given a wide interpretation. It has to be specific and concrete, and the arrest and detention must be truly necessary for the purpose of ensuring its fulfilment. Moreover, in assessing whether the deprivation of liberty is justified, a fair balance has to be drawn between the significance in a democratic society of securing the fulfilment of the obligation in issue and the importance of the right to liberty.", "The relevant factors in drawing this balance are the nature and the purpose of the obligation, the detained person, the specific circumstances which led to his or her detention, and the length of the detention (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, p. 28, § 69 in limine; McVeigh and Others v. the United Kingdom, nos. 8022/77, 8025/77 and 8027/77, Commission’s report of 18 March 1981, DR 25, pp. 37‑43, §§ 168‑96; Vasileva v. Denmark, no. 52792/99, §§ 36 and 37, 25 September 2003; and Epple v. Germany, no.", "77909/01, § 37, 24 March 2005). 73. The Court observes that at the time of the applicant’s arrival at the police station the police were already inquiring into allegations that one of his clients, Mr K.G., had committed acts of extortion in his office, and had brought Mr K.G. in for questioning (see paragraphs 8 and 9 above). In view of the seriousness of the allegations, it is not surprising that they found it necessary also to interview the applicant in relation to this.", "It is a normal feature of law enforcement for the authorities to be able to ensure the attendance of witnesses in criminal investigations. It is true that the applicant came to the police station voluntarily. However, Article 95 § 1 of the CCP places witnesses not only under the obligation to appear for questioning, but also to remain at the disposal of the authorities until necessary for this purpose (see paragraph 27 above). 74. In the circumstances of the case, it does not appear that that at the time of the applicant’s interview the police had a sufficiently firm suspicion against him to the extent that this interview was in reality a preparatory stage to charging him.", "The measures taken against him were therefore not “situated in a punitive context”, and fell within the ambit of Article 5 § 1 (b) (see McVeigh and Others, cited above, p. 41, § 187; and, as an example to the contrary, Engel and Others, cited above, pp. 28‑29, § 69). 75. The Court does not therefore find that it was contrary to Article 5 § 1 (b) for the police to deprive the applicant of his liberty for a limited amount of time for the purpose of taking his statement. It is true that his actual interview took place some four and a half hours after his arrival at the police station.", "However, in light of its and the former Commission’s case‑law (see B. v. France, no. 10179/82, Commission decision of 13 May 1987, DR 52, p. 111, at pp. 125‑26; Reyntjens v. Belgium, no. 16810/90, Commission decision of 9 September 1992, DR 73, p. 136, at pp. 151‑52; Vasileva, §§ 41 and 42; and Epple, § 45, both cited above), the Court does not consider that by keeping the applicant in custody for a period totalling five hours the authorities overstepped the reasonable balance between the need to question him and his right to liberty.", "Finally, the Court does not perceive anything to suggest that the applicant’s deprivation of liberty was unlawful. 76. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 77. As regards the complaint under Article 5 § 5, the Court notes that neither it, nor a domestic authority, has found that the applicant’s deprivation of liberty was in breach of any of the preceding paragraphs of that Article (see McVeigh and Others, p. 48, § 220; and Guenat, at p. 135, both cited above).", "It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. C. Alleged violations of Article 6 §§ 1 and 3 (a) of the Convention 78. The applicant complained under Article 6 § 1 of the Convention that he had not had access to a court competent to rule on the criminal charges against him and before which to challenge the search warrant. In his view, his detention and the search and seizure in his office had constituted a criminal charge within the meaning of that provision. He also complained under Article 6 § 3 (a) of the Convention that he had not been informed of the charges against him.", "79. Article 6 provides, as relevant: “1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; ...” 80.", "The Court observes that the criminal proceedings in the course of which the applicant was brought in for questioning and his office was searched were not directed against him and thus did not constitute a criminal charge against him. It follows that these proceedings did not come within the scope of Article 6 as regards the applicant (see S. v. Austria, no. 12592/86, Commission decision of 6 March 1989, unreported; Raiffeisenbank Kötschach‑Mauthen v. Austria, no. 28630/95, Commission decision of 3 December 1997, unreported; and Smirnov v. Russia (dec.), no. 71362/01, 30 June 2005; see also, mutatis mutandis, Reinhardt and Slimane‑Kaïd v. France, judgment of 31 March 1998, Reports 1998‑II, p. 661, § 93 in fine).", "81. Even assuming, however, that the above acts amounted to the bringing of criminal charges against the applicant, the Court observes that the right of access to a court in criminal matters may be limited through a decision not to charge or prosecute, or a decision to discontinue a prosecution (see Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, p. 25, § 49 in limine; and Soini and Others v. Finland, no. 36404/97, §§ 67‑69, 17 January 2006). In the instant case, the proceedings were stayed on 5 February 2001 on the ground that the identity of the alleged offender could not be established (see paragraph 19 above) and there is no indication that the applicant has ever been prosecuted or tried in relation to them.", "82. As to the decision of the Sofia District Court to issue a search warrant for the applicant’s office (see paragraph 15 above), it did not determine a criminal charge against him and did not therefore attract the guarantees of Article 6. 83. It follows that this complaint is inadmissible under Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4. D. Alleged violation of Article 13 of the Convention 84.", "The applicant alleged that he had not had effective remedies for his complaints under Articles 3, 5 and 6 of the Convention. He relied on Article 13. 85. The text of Article 13 and the relevant case-law have been set out in paragraphs 53 and 56 above. 86.", "Seeing that all the complaints in relation to which the applicant relies on Article 13 have been declared inadmissible, the Court does not consider that they amounted to “arguable” grievances within the meaning of this provision. 87. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 88.", "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 89. The applicant claimed 5,000 euros (EUR) in respect of damage suffered on account of the alleged breach of Article 3 of the Convention. He also claimed EUR 5,000 for damage sustained as a result of the alleged violations of Articles 5 and 6 of the Convention. Finally, he claimed EUR 50,000 for pecuniary damage flowing from the two alleged breaches of Article 8 of the Convention.", "He said that the search, which had been widely publicised, had seriously damaged his professional reputation and had no doubt deterred potential clients. He further claimed EUR 20,000 in respect of non-pecuniary damage occasioned by the two alleged breaches of this provision. 90. The Government made no comments on the applicant’s claims. 91.", "The Court first notes that an award of just satisfaction can only be based on the breaches of Articles 8 and 13 of the Convention arising from the search and seizure in the applicant’s office and the lack of remedies in this regard. 92. With regard to the claim in respect of pecuniary damage, the Court observes that it cannot speculate as to what the effects on the applicant’s reputation would have been had the search and seizure been carried out in line with the requirements of Article 8 (see Wieser and Bicos Beteiligungen GmbH, cited above, § 73). Consequently, it makes no award under this head. 93.", "On the other hand, the Court accepts that the applicant has suffered distress and frustration resulting from the manner in which the search and seizure were carried out. Making an assessment on an equitable basis, as required under Article 41, the Court awards him EUR 1,000 under this head. To this amount should be added any tax that may be chargeable. B. Costs and expenses 94.", "The applicant stated that he sought the reimbursement of his costs and expenses. However, he did not supply any particulars of that expenditure. 95. According to the Court’s case-law, applicants are entitled to the reimbursement of their 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. To this end, Rule 60 §§ 2 and 3 of the Rules of Court stipulate that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”.", "In the present case, noting that the applicant has failed to produce any documents – such as itemised bills or invoices – in support of his claim, the Court does not make any award under this head. C. Default interest 96. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaints concerning the search and seizure in the applicant’s office and the alleged lack of remedies in this respect admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 8 of the Convention on account of the search and seizure carried out in the applicant’s office; 3. Holds that there has been a violation of Article 13 of the Convention on account of the lack of effective remedies in respect of the search and seizure carried out in the applicant’s office; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement; (b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 May 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Claudia WesterdiekPeer LorenzenRegistrarPresident" ]

[ "THIRD SECTION CASE OF CRĂCIUN v. ROMANIA (Application no. 5512/02) JUDGMENT STRASBOURG 30 September 2008 FINAL 26/01/2009 This judgment may be subject to editorial revision. In the case of Crăciun v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President,Corneliu Bîrsan,Boštjan M. Zupančič,Alvina Gyulumyan,Egbert Myjer,Ineta Ziemele,Luis López Guerra, judges,and Stanley Naismith, Deputy Section Registrar, Having deliberated in private on 9 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 5512/02) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Nicolae Crăciun (“the applicant”), on 23 February 2001.", "2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 3. On 3 May 2007 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1950 and lives in Bucharest. 5. On 1 October 1993 G.G.C. and I.S.", "founded a company G. in Focşani to run a mutual aid scheme of the Caritas-type, which promised eight to ten times the money invested in seventy-five to eighty-five working days. 6. On 11 January 1994 the applicant became the sole shareholder of the company and on 17 February 1994 he withdrew by transferring all the shares of the capital to P.I. The transfer was registered at the Office of Commerce Registry attached to the Vrancea Chamber of Commerce and Industry and it was stated that the applicant continued to act as general director of the company. 7.", "On 11 March 1994, following some written notifications, the police, the public prosecution and the Financial Guard (Garda Financiară) started investigating the company’s activity and found several illegalities. A. First set of criminal proceedings 8. On 23 March, 15 April, 20 September and 19 October 1994 the public prosecutor ordered the sequestration of the movable and fixed assets belonging to the applicant, to his wife and to three companies involved in business with him in his capacity as the sole shareholder of the company G., and the freezing of his personal bank accounts until the resolution of the case, with a view to recovering the damage. 9.", "On 24 March 1994 the public prosecutor initiated a criminal action against the applicant for fraudulent bankruptcy, fraud, forgeries and use of forgery, and issued a provisional detention order against him, mentioning these offences in the order. 10. At least on 18 April, 17 May, 15 June and 14 July 1994 the Focşani Court of First Instance, on successive applications by the prosecutor, repeatedly extended the applicant’s pre-trial detention by thirty days. The applicant remained in pre-trial detention until 13 October 1995. 11.", "The applicant contested his detention pending trial. At least on 17 May, 8 and 29 June, and 26 July 1994 the Vrancea Regional Court rejected his demands as groundless. 12. On 2 November 1994 the prosecutor showed the applicant the investigation file and told him about the classification of the offences as fraud and fraudulent bankruptcy. 13.", "On 7 November 1994, on an application by the public prosecutor, the applicant was committed for trial before the Focşani Court of First Instance for fraud and fraudulent bankruptcy, together with four other persons. The prosecutor’s indictment mentioned that the applicant had misled thousands of people and had illegally appropriated the amount of 555,528,448 Old Romanian Lei (ROL). It further revealed that during investigations 4,927 depositors had requested to participate in the proceedings as injured parties and formed themselves into an association. The indictment also recorded a company and the liquidation commission as injured parties and three companies as parties bearing civil responsibility. 14.", "On 27 December 1994 the public prosecutor committed the applicant for trial for mismanagement. 15. On 8 February 1995 the Focşani Court of First Instance considered that the case was within the jurisdiction of the Bucharest Court of First Instance and remitted the case to that court. 16. Of the twenty-two hearings held between 22 June 1995 and 28 June 2001, eighteen minutes mentioned that the court had failed to properly summon different parties in the proceedings, including two when the applicant also requested an adjournment for his and his lawyer’s absence.", "In particular, ten hearings held between 25 January 1996 and 14 December 2000, when I.S., one of the co-accused, had to be summoned in the United States, were adjourned at intervals ranging from three to almost eight months. During the hearing of 14 December 2000 the Bucharest Court of First Instance eventually considered, inter alia, that I.S. was evading the proceedings and therefore his lawyer’s request that he continue to be summoned in the United States was to be considered abuse of procedural law. 17. On 29 April 1999 the applicant contested before both the prosecutor and the court, under Article 168 of the Code of Criminal Procedure, the sequestration of one of his fixed assets.", "18. On 13 July 2001 the Court of First Instance convicted the applicant of fraud and sentenced him to one year, six months and twenty-four days’ imprisonment, considering the sentence to have been executed during his provisional detention between 24 March 1994 and 14 October 1995. It further acquitted the applicant of fraudulent bankruptcy and terminated the criminal proceedings in respect of mismanagement because of the prescription of criminal liability. It also held him personally liable for ROL 555,528,448 towards the association of the injured depositors. The court maintained the preventive measures taken during pre-trial investigations.", "The court considered, inter alia, that the proceedings had been delayed for a long time by the fact that on 25 January 1996 it was decided to summon I.S. in the United States. It also noted that on 9 December 1999 it was decided to summon G.G.C., another co-accused, in the United States as well and that the court reconsidered those measures on 14 December 2000. 19. On 10 May 2002 the Bucharest Regional Court allowed the appeals lodged by the applicant, by the public prosecutor and by G.G.C., quashed the previous judgment and sent the case back to the first-instance court for a fresh examination.", "It considered that the civil limb of the case had not been correctly assessed. 20. During the retrial, twenty-six hearings were held between 4 October 2002 and 11 March 2005, none of which was adjourned as a result of requests by the applicant. 21. On 14 March 2005 the Bucharest Court of First Instance noted in a judgment that the prescription of the applicant’s criminal liability had occurred on 16 August 2001 and that he had requested, together with two other co-accused, that the criminal proceedings be continued under Article 13 of the Code of Criminal Procedure.", "The court ordered that the case be severed, fixing a hearing for 22 April 2005. 22. Of the eighteen hearings held between 22 April 2005 and 25 May 2007, one was adjourned at the applicant’s request. 23. On 11 November 2005 the Bucharest Regional Court upheld the appeals introduced by both the public prosecutor and the applicant, quashed the judgment of the first-instance court on the grounds that it had not examined some objections raised by the parties, including the provisional measures taken during criminal investigations, and that the procedure had been vitiated, and sent the case back for retrial.", "During the retrial, on 17 March 2006 the Bucharest Court of First Instance decided to rejoin the various claims in the case, considering that by quashing the judgment of 14 March 2005 in its entirety, the order to sever the case had also been quashed. 24. The proceedings are still pending and the Government did not inform the Court of the course of proceedings following the hearing of 25 May 2007. On 8 July 2008 the applicant informed the Court that a new hearing will take place on 21 October 2008. B.", "Second set of criminal proceedings 25. On 16 March 1994 the applicant allegedly behaved violently in the presence of a journalist who had come to gather information in respect of the mutual aid scheme, and destroyed the latter’s microcassette recorder. 26. On 21 April 1994 the public prosecutor issued a provisional detention order against the applicant for a period of thirty days. His detention lasted until 20 July 1994.", "27. On 22 April 1994, on an application by the public prosecutor, the applicant was committed for trial before the Focşani Court of First Instance for criminal damage, abusive conduct and slanderous defamation. 28. On 27 November 1997 the Court of First Instance acquitted the applicant of criminal damage and abusive conduct and convicted him of slanderous defamation. The court further noted that the applicant, in accordance with Law no.", "137/1997, had been pardoned as regards his sentence. 29. On 16 April 1999 the Harghita Regional Court upheld the public prosecutor’s appeal and rejected that of the applicant, quashed the judgment of the first-instance court in part and also convicted the applicant of criminal damage and abusive conduct, noting that under Law no. 137/1997 he had been pardoned as regards his sentence. 30.", "On 30 November 1999 the Târgu Mureş Court of Appeal, in a final decision, allowed the applicant’s appeal and quashed the previous judgments in part. The court changed the classification of the offences from abusive conduct to assault or other forms of violence, convicted the applicant of the latter and noted that he had been pardoned as regards the sentence under Law no. 137/1997. It also removed the provision regarding the dismissal of the applicant’s appeal by the Regional Court. C. Third set of criminal proceedings 31.", "On 19 April 1994 the public prosecutor started criminal proceedings against the applicant for fraudulent bankruptcy, fraud, forgery of official documents and forgery, and issued a provisional detention order for a period of thirty days. The prosecutor found that the applicant had falsified receipts and had made anticipated payments to several persons. 32. The Focşani Court of First Instance, on successive applications by the public prosecutor, repeatedly extended the applicant’s pre-trial detention by thirty days until 14 August 1994, when he was released. 33.", "The applicant contested his detention pending trial and at least on 8 June 1994 the Vrancea Regional Court rejected his demand as groundless. 34. On 22 February 1995, on an application by the public prosecutor and together with four other persons, the applicant was committed for trial before the Focşani Court of First Instance for fraudulent bankruptcy, forgery of official documents and forgery in respect of falsification of eight receipts for anticipated payment to some depositors. 35. On 30 October 1996 the Giurgiu Court of First Instance acquitted the applicant.", "That decision was upheld on 8 July 1997 by the Giurgiu Regional Court and on 1 June 1998 by a final decision of the Bucharest Court of Appeal. D. The applicant’s criminal record 36. On 4 January 2001 the General Inspectorate of Police issued the applicant with his criminal record, which stated that he had been convicted of criminal damage and abusive conduct, and sentenced to six months and one year’s imprisonment respectively by the judgment of 27 November 1997 of the Focşani Court of First Instance, which became final by the judgment of 30 November 1999 of the Târgu Mureş Court of Appeal. The sentences were pardoned under Law no. 137/1997.", "It further stated that on 7 November 1994 and 27 December 1994 criminal proceedings had been initiated against the applicant for fraud and mismanagement. 37. On 5 January 2006 the General Inspectorate of Police issued the applicant with his criminal record, mentioning that he had been convicted of destruction and slanderous defamation and sentenced to six months and one year’s imprisonment respectively by the judgment of 27 November 1997 of the Focşani Court of First Instance, which became final by the judgment of 30 November 1999 of the Târgu Mureş Court of Appeal. The sentences were pardoned under Law no. 137/1997.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 38. The applicant complained that the length of the first set of proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 39. The Government contested that argument, considering the case particularly complex due to what was at stake and to the great number of parties, namely over 6,000 civil parties. 40.", "The period to be taken into consideration began only on 20 June 1994, when Romania ratified the Convention. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question has not yet ended. It has thus lasted more than fourteen years and four months for two levels of jurisdiction. Four courts examined the case during this period.", "A. Admissibility 41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 42. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 43. The Court finds that the complexity of the case and the applicant’s conduct alone cannot explain the overall length of the proceedings.", "It considers that a number of delays (in particular, repetitive adjournments of hearings in view of the other parties’ absence and remittals of the case for a fresh consideration) are attributable to the respondent State. Moreover, a delay of approximately five years was caused by the court’s inability to properly summon one of the co-accused in the United States (see paragraph 16 above). 44. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above). 45.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject (see, among other authorities, Lavents v. Latvia, no. 58442/00, 28 November 2002), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION 46. The applicant relied on Articles 3, 5 §§ 1 (a), (c), 2-4 with regard to the period of detention, complaining of ill-treatment, that he had contracted diabetes, tuberculosis and hepatitis, and of lack of medical treatment, of unlawful arrest, that there had been no reasonable suspicion of him having committed an offence, that he had not been informed of the reasons for his arrest, that he had been arrested by the prosecutor and had not been brought before a magistrate, and that the right to contest the extension of the pre-trial detention was theoretical and ineffective. 47. The applicant complained under Article 6 § 1, in respect of the first and second set of proceedings, that the solution had been unfair, that the domestic courts had failed to assess the facts correctly, had misinterpreted the domestic law, and had not admitted, during the first set of proceedings, any evidence on his behalf. He further alleged a violation of Article 6 § 2 on account of the preventive measures taken by the prosecutor and of the provisional inscriptions in his criminal record, and of Article 8 in so far as the preventive measures had interfered with his and his wife’s private life.", "The applicant also relied on Article 7 of the Convention and Article 1 of Protocol No. 4. 48. Having carefully considered the applicant’s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 49.", "It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51.", "The applicant claimed at least 41,250 euros (EUR) in respect of pecuniary damage, representing the wages he could have earned since April 1994. He also asked the Court to determine the amount of compensation in respect of non-pecuniary damage. 52. The Government contested the claim in respect of pecuniary damage on the ground that such a claim had not been raised in the present application. Further, they considered that a finding of a violation would constitute in itself sufficient just satisfaction for any non-pecuniary damage the applicant may have suffered.", "53. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicant must have sustained non-pecuniary damage in respect of the violation found. Ruling on an equitable basis, the Court awards him EUR 7,200 under that head. B.", "Costs and expenses 54. The applicant claimed reimbursement of the costs and expenses he had incurred in the proceedings in the national courts and before the Court, without quantifying them or submitting any supporting documents. He left it to the Court’s discretion to determine the amount to be awarded under this head. 55. The Government contested the claim as unsubstantiated.", "56. The Court reiterates that under Article 41 of the Convention it will reimburse only the costs and expenses that are shown to have been actually and necessarily incurred and are reasonable as to quantum (see Arvelakis v. Greece, no. 41354/98, § 34, 12 April 2001). Furthermore, Rule 60 § 2 of the Rules of Court provides that itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. 57.", "In the instant case, the Court observes that the applicant has not substantiated his claim in any way, as he has neither quantified his costs nor submitted any supporting documents. Accordingly, the Court does not award any sum under this head (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004‑XI). C. Default interest 58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,200 (seven thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 30 September 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stanley NaismithJosep CasadevallDeputy RegistrarPresident" ]

[ "FOURTH SECTION CASE OF BALEZDROVI v. BULGARIA (Application no. 36772/06) JUDGMENT STRASBOURG 20 September 2011 This judgment is final but it may be subject to editorial revision. In the case of Balezdrovi v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a committee composed of: Päivi Hirvelä, President,Ledi Bianku,Zdravka Kalaydjieva, judges,and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 30 August 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 36772/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Mrs Teodora Hristova Balezdrova and Mr Atanas Dimitrov Balezdrov (“the applicants”), on 30 August 2006.", "2. The applicants were represented by Mr M. Ekimdzhiev, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3. On 25 February 2010 the President of the Fifth Section decided to give notice of the application to the Government.", "4. The application was later transferred to the Fourth Section of the Court, following the re-composition of the Court’s sections on 1 February 2011. In accordance with Protocol No. 14 to the Convention, the application was allocated to a Committee of three Judges. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicants are spouses who were born in 1957 and 1955 respectively and live in Plovdiv. 6. Following partition proceedings, in 1980 the first applicant obtained title over a house together with the adjoining land in Plovdiv, previously owned by her ancestor. 7.", "By an order of 25 April 1984 the mayor of Plovdiv expropriated the properties with a view to constructing an apartment building. The order was based on sections 95 and 98 of the Territorial and Urban Planning Act of 1973 (“the 1973 Act”) and stipulated that the first applicant was to receive as compensation a three-room flat in a building which was to be erected by a housing construction cooperative and partly financed by the State. The expropriated properties were valued at 7,431.81 old Bulgarian levs (BGL[1]). 8. By a supplementary order of 5 June 1986 based on section 100 of the 1973 Act (see paragraph 17 below), the mayor indicated the exact flat to be given to the first applicant by way of compensation, specifying the building in which it would be located and its exact size and price.", "9. In November 1986 the applicants vacated the property and were accommodated in a State-owned dwelling. Subsequently the expropriated house was pulled down. 10. The flat allotted to the first applicant was valued at BGL 22,928.", "In 1987 the applicants paid to the cooperative part of that price. The remainder, which equalled the value of the first applicant’s expropriated property, was to be covered by the State. 11. On 3 June 1987 the State Savings Bank informed the Bulgarian National Bank that all members of the housing construction cooperative had paid the instalments due by them for the construction of the building. 12.", "Apparently, the construction works started in 1987. 13. Between 1992 and 1997 the housing construction cooperative informed the mayor of Plovdiv, the Minister of Finance and the Minister of Public Works of the increase in construction material prices, including by providing in October 1992 and in July 1997 a calculation of the respective increase in the financing due by the authorities. The cooperative also drew the authorities’ attention to delays in the construction works and requested that the State fulfilled its obligation to pay its share in the financing of the construction works. 14.", "It appears that between 1995 and 1997 the Ministry of Finance paid the State’s share for the construction works which had been performed between 1992 and 1997. The applicants and the other persons entitled to receive flats in the building also made further financial contributions on account of the increase in construction material prices. 15. Apparently, in 1999 and 2001 the Plovdiv Municipality and the housing construction cooperative concluded contracts assigning the construction works of the building to several companies. According to an annex to the contract of 2001, signed in 2005, which specified each party’s financial obligations the State was to cover the whole cost of the construction expenses for the flats of the cooperatives’ members whose properties had been expropriated.", "The annex further specified that the Plovdiv Municipality’s outstanding financial obligations towards the cooperative amounted to 13,800 new Bulgarian levs (BGN). 16. The part of the building where the first applicant’s flat was located was completed and its use authorised on 23 July 2007. That month the first applicant and her family moved in the property. On 5 June 2008 the first applicant obtained a notary deed for the flat which stated that its market value was BGN 41,745.82 (21,344 Euros (EUR)).", "II. RELEVANT DOMESTIC LAW AND PRACTICE 17. The relevant domestic law and practice have been summarised in the Court’s judgments in the cases of Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§ 72-83, 9 June 2005) and Lazarov v. Bulgaria (no. 21352/02, § 19, 22 May 2008).", "18. Pursuant to Article 13 § 2 of the 1968 Family Code in force at the relevant time real estate or goods acquired by one of the spouses during the marriage by means of inheritance remained personal property of that spouse. 19. According to section 16 § 4 of Ordinance No. 5 of 11 February 1986 (Hаредба № 5 oт 11.02.1986 г. за набиране и разходване на средствата по фонд “Жилищно строителство”) the difference in the value of expropriated properties as determined at the time of expropriation and the value paid by the expropriated owner was to be covered by the State following the submission by the housing construction cooperative of a form containing an estimation of that difference.", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 20. The applicants complained that as a result of the authorities’ inaction they were not provided with the flat they were entitled to receive in compensation for the first applicant’s expropriated property for an extended period of time, in breach of Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 1. The second applicant’s victim status 21. The Government submitted that the second applicant could not claim to be a victim of the alleged violation of the Convention. They argued that the expropriated property belonged to the first applicant alone and that it was only her who was listed in the Property Registry as the owner of the flat provided to her in compensation.", "The Government thus considered that the second applicant’s property rights were not affected by the events in question. 22. The applicants submitted that the flat provided in compensation for the first applicant’s expropriated properties was jointly owned as they were spouses at the time the properties were acquired in 1980 and as the funds paid towards the construction came out of the family budget. 23. The Court observes that, although acquired during her marriage, the first applicant inherited the expropriated properties and was their only owner according to the provisions of domestic law (see paragraphs 6 and 18 above).", "In addition, it was only her who was provided the flat in compensation (see paragraph 8 above) and who was listed as the owner in the notary deed issued following the flat’s completion (see paragraph 16 above). The second applicant did not have a vested right in the property. 24. The Court therefore considers that the complaint lodged by the second applicant on his own behalf is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. The Court will henceforth refer to the first applicant as “the applicant”.", "2. The Government’s objection of non-exhaustion of domestic remedies 25. The Government further contended that the applicant had failed to exhaust domestic remedies. In particular, they submitted that she could have requested a modification of the order to provide for compensation in cash, for compensation with a smaller flat, or compensation with a flat situated elsewhere. In the Government’s view the applicant could lodge an action under the State and Municipality Responsibility for Damage Act and claim compensation for the damage sustained because of the delay in providing the flat due to her.", "26. The Court notes that the objections and arguments put forward by the Government have been rejected in earlier similar cases (see Kirilova and Others, §§ 110-120, cited above; Antonovi v. Bulgaria, no. 20827/02, § 24, 1 October 2009) and sees no reason to reach a different conclusion in the present case. In particular, it notes that the domestic case-law referred to by the Government does not concern the award of damages for delays in providing compensation for expropriated property and as such cannot support the assertion that an action under the State and Municipality Responsibility for Damage Act was an effective remedy for the applicant in the circumstances of the present case. 27.", "It follows that the Government’s objection of non-exhaustion of domestic remedies in respect of the applicant’s complaint under Article 1 of Protocol No. 1 must be dismissed. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "1. The parties’ submissions 28. The applicant submitted that the authorities’ failure to provide the necessary financing had resulted in her being unable to obtain the flat provided in compensation for her expropriated property for over twenty years and that this infringed her right under Article 1 of Protocol No. 1. 29.", "The Government submitted that the case differed significantly from Kirilova and Others (cited above) in that in the case at hand the State had not been under an obligation to construct the flat provided in compensation to the applicant. They further submitted that the Plovdiv Municipality had in no way impeded the construction of the apartment building and that it had provided financing according to the funds available to it. They also averred, relying on Ordinance No. 5 of 11 February 1986, that it had not been established that the applicant or the housing construction cooperative had submitted the documents required by that ordinance in order to secure State financing. Finally, the Government drew attention to the fact that the construction works between 2001 and 2007 had been carried out in a timely manner and that the flat was delivered to the applicant in July 2007.", "2. The Court’s assessment 30. The Court notes at the outset that, similarly to the case Kirilova and others as well as to the follow-up cases Lazarov and Antonovi (all cited above), the applicant in the instant case had a vested right to the flat awarded to her as compensation for her expropriated property (see paragraph 8 above). 31. As regards the scope of the case, the Court observes that it does not concern – and it has no jurisdiction ratione temporis to examine – the issues linked to the taking of the applicant’s property in 1984 or the adequacy of the compensation awarded at that time and that consequently the interference cannot be equated to a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No.", "1. Instead, the alleged interference with the applicant’s right to enjoyment of her possessions consisted of the delay in providing her with the compensation awarded which occurred after 7 September 1992, the date when the Convention and Protocol No. 1 entered into force in respect of Bulgaria. Accordingly, the Court will examine it under the first sentence of that paragraph (see Kirilova and Others, §§ 104 and 105, Lazarov, § 28, and Antonovi, § 29, all cited above). 32.", "The Court thus needs to establish whether the delay in providing the compensation awarded to the applicant for her expropriated property upset the fair balance which must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see the above-cited Kirilova and others judgment, § 106). 33. The Court observes in that regard that unlike the cases cited above, where the authorities were under an obligation to construct the flats provided in compensation for the applicants’ expropriated properties, in the case at hand the State’s duty as defined at the time of the expropriation was one of providing financing whereas the construction of the applicant’s flat was to be carried out by a housing construction cooperative. 34. The Court thus considers it appropriate to distinguish between the period when the authorities were under an obligation to provide funds to the housing construction cooperative which was to use them towards the construction of the applicant’s flat and the period after the contracts signed in 1999 and 2001 and the annex signed in 2005 (see paragraph 15 above) when the authorities became a party to the contracts for construction of the flat.", "35. As regards the first period, the Court does not consider that the authorities can be regarded as responsible for the delay in the construction and delivery of the applicant’s flat solely on account of the delay on their part in providing the funds due by them as the construction works themselves were to be carried out by a third party contracted by the housing construction cooperative. 36. However, following the agreements signed in 1999 and 2001 and the annex of 2005 the authorities became contractually bound to carry out the construction of the applicant’s flat (see paragraph 15 above). What is more, according to the annex signed in 2005 and much as in the cases Kirilova and others, Lazarov and Antonovi (all cited above) they were entirely responsible for the construction of the flats of the members of the housing construction cooperative - such as the applicant - whose properties had been expropriated.", "37. The Court notes, in that regard, the irregular nature of the financing provided by the State (see paragraphs 14 and 15 above) and that as of 2005 there still were outstanding financial obligations on its part. It also notes that, the Government do not contend that the applicant or the housing construction cooperative had not paid their share in the financing of the construction works and do not put forward any detail in support of their assertion that the construction works were being carried out in a timely manner. That being said, the Court cannot but conclude that it was the delay on the part of the public authorities in providing the necessary financing, coupled with their passive attitude during long periods of time that prevented the applicant from obtaining the flat provided to her in compensation for her expropriated property for a period of over eight years. 38.", "In the judgments of Kirilova and Others and Lazarov (both cited above) the Court found that the fair balance required under Article 1 of Protocol No. 1 had not been achieved due to the long delays in providing the properties, the authorities’ passive attitude, and the long period of uncertainty endured by the applicants who, as a result, had to bear a special and excessive burden (see Kirilova and Others, § 123, Lazarov, § 32, Antonovi, § 30, all cited above). While taking note of the present case’s discernible feature (see paragraphs 33 and 35 above), the Court sees no reason to reach a different conclusion bearing in mind the delay of more than eight years in the delivery of the applicant’s flat following the moment when the Plovdiv Municipality became directly involved in the carrying out of the construction works. 39. There has accordingly been a violation of Article 1 of Protocol No.", "1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 40. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Pecuniary damage 41.", "The applicant claimed EUR 43,275 in respect of pecuniary damage resulting from the impossibility to use the flat provided to her in compensation. The amount represented the loss of rent sustained by the applicant between 1991 and 2007. 42. The Government contested these claims. 43.", "The Court finds it appropriate to adopt the same approach as that in the judgments in the cases of Kirilova and Others v. Bulgaria (just satisfaction), (nos. 42908/98, 44038/98, 44816/98 and 7319/02, 14 June 2007) and the above-cited cases of Lazarov (§§ 37-45) and Antonovi (§§ 33-42). 44. In respect of the alleged loss of rent, the Court observes that the applicant has not shown that she or her family had alternative housing available to them and, consequently, that she would have let out the flat. Furthermore, the applicant, who was provided with temporary municipal housing, did not claim that she or her family had incurred expenses in order to find accommodation while awaiting delivery of the flat.", "The Court nevertheless considers that the applicant has suffered a certain loss of opportunity on account of not having been able to use and enjoy the flat for an excessively long period of time (see Kirilova and Others (just satisfaction), cited above, § 33). Ruling in equity, it awards EUR 2,000 under this head. 2. Non-pecuniary damage 45. The applicant claimed EUR 20,000 in respect of non-pecuniary damage.", "She submitted she had suffered anxiety and frustration over an extended period of time. 46. The Government contested these claims as excessive and speculative. In their view the finding of a violation of the Convention would constitute sufficient just satisfaction for the applicant. 47.", "The Court considers that the breach of Article 1 of Protocol No. 1 must have caused the applicant non-pecuniary damage. Thus, having regard to the period of delay in respect of which it found a breach of the Convention, and ruling in equity, it awards the applicant EUR 2,500. B. Costs and expenses 48.", "The applicant also claimed EUR 3,717.95 for the costs and expenses incurred before the Court including EUR 3,413.20 for legal fees, EUR 228.45 for translation and clerical expenses and EUR 76.70 for a valuation report. In support of her claim she presented a contract for legal representation, a time sheet, a translation contract and postal receipts. She requested that the amount awarded by the Court under this head be paid into the bank account of her representative, Mr M. Ekimdzhiev with the exception of EUR 400 which she had paid as an advance payment on the legal fees and EUR 76.70 for the cost of the valuation report. 49. The Government contested these claims as excessive.", "50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads. EUR 1,523.30 of that amount is to be paid directly into the bank account of the applicant’s legal representative, Mr M. Ekimdzhiev. C. Default interest 51.", "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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares admissible the complaint submitted by Mrs. Teodora Balezdrova under Article 1 of Protocol No. 1 concerning the authorities’ continued failure to provide her with the compensation she was awarded for her expropriated property and declares the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 3. Holds (a) that the respondent State is to pay Mrs. Balezdrova, within three months the following amounts which are to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 1,523.30 of which to be transferred directly into the bank account of the applicant’s representative; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıPäivi Hirvelä Deputy RegistrarPresident [1] On 5 July 1999 the Bulgarian lev was revalued.", "One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL)." ]

[ "FIRST SECTION CASE OF SALATKHANOVY v. RUSSIA (Application no. 17945/03) JUDGMENT STRASBOURG 16 October 2008 FINAL 16/01/2009 This judgment may be subject to editorial revision. In the case of Salatkhanovy v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Sverre Erik Jebens, judges,and André Wampach, Deputy Section Registrar, Having deliberated in private on 25 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 17945/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Ms Reyzilya Nasrudinovna Salatkhanova and Mr Movlid Yusup-Khadzhiyevich Salatkhanov (“the applicants”), on 24 November 2000.", "2. The applicants were represented by Ms L. Khamzayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. 3. The applicants alleged, in particular, that their son had been killed by a serviceman in breach of Article 2 of the Convention and that no adequate investigation had been conducted in this respect.", "4. By a decision of 20 September 2007, the Court declared the application admissible. 5. The Government, but not the applicants, filed further written observations (Rule 59 § 1). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1951 and 1938 respectively and live in the village of Dyshne-Vedeno, the Chechen Republic. A. Killing of Ayub Salatkhanov 7. The applicants are husband and wife.", "The first applicant is a housewife and the second applicant is retired. They have nine children. In April 2000 their son Ayub Salatkhanov, born in 1984, was a student of the 9th grade at school. 8. On 17 April 2000 at about 1 p.m. Ayub Salatkhanov, with three of his friends, were walking along Lenina Street towards the village market.", "At the same time a convoy of Russian military vehicles was going down the street. The convoy included armoured personnel carriers (APCs), with soldiers sitting on the hulls. One of the servicemen raised his automatic rifle, took aim and shot at the applicants’ son. According to the applicants, it must have been a rifle fitted with a silencer because the other three boys did not hear the shot and did not understand where it had been aimed, until Ayub Salatkhanov, who took several more steps, fell on the ground in front of a house at 153 Lenina Street, where the head of the village administration lived. 9.", "Ayub Salatkhanov was bleeding from the mouth and the chest area. He was immediately put into a car to be taken to the district hospital, but died in the car on the way. He had been wounded in the heart. 10. At the relevant time there were a lot of passers-by in the street, who called the local police, the military commander’s office and the prosecutors office.", "Together they forced the convoy to stop and to go to the military commander’s office. There the servicemen of the Dyshne-Vedeno temporary district police station (VOVD) identified a warrant officer, Ch., who had allegedly shot at the boy. In the meantime he had climbed from the APC into the hull of a ZIL-130 military truck. According to the applicants, the servicemen of the VOVD searched the truck, and in a box containing canned meat found an AK 7.62 automatic rifle, with an ammunition magazine and a silencer. The rifle belonged to warrant officer Ch.", "B. Investigation into the killing 11. On 17 April 2000 the Vedeno District Prosecutor’s Office opened criminal investigation no. 14/36006 under Article 105 paragraph 1 of the Criminal Code into the murder of Ayub Salatkhanov. The applicants were informed accordingly by a letter of 27 April 2000, which also stated that “the person who committed the crime has been identified and detained” and that the case file would be transferred for further investigation to the military prosecutor of military unit no.", "20102 based in Khankala (the main Russian military base in Chechnya). 12. On the same date an inspection of the crime scene and of the military vehicles was carried out and E., an eye-witness, was questioned. E. submitted that on 17 April 2000 he, together with Ayub Salatkhanov, S., A., Kh. and B. had been walking down Lenina Street and that a military convoy had been moving towards them.", "He had seen a serviceman in an APC who lifted a weapon fitted with a silencer, aimed it at Ayub Salatkhanov from a distance of ten meters and took two or three shots with it. 13. On 19 April 2000 S. was questioned. He made a statement similar to that of E. 14. On 19 and 20 April 2000 serviceman S-v. was questioned.", "He submitted that a magazine case with 25 cartridges of 7.62 mm calibre and a silencer had been found in Ch.’s backpack. 15. On 20 April 2000 the second applicant was granted victim status in the criminal proceedings. 16. On the same date the automatic rifle was seized from Ch.", "It was inspected together with other pieces of evidence. 17. On 21 April 2000 Ch. reported to the Vedeno District Prosecutor’s Office and admitted his guilt. He was questioned as a suspect on the same date.", "He was placed under the supervision of the commander of military unit no. 75143 as a measure of restraint. 18. Later Ch. retracted the statement he had made on 21 April 2000 and apparently submitted that the bullets had ricocheted.", "19. On 3 May 2000 a forensic expert examination of the cartridges was completed. 20. On 3 June 2000, due to the lack of evidence required to bring charges, the investigating authorities suspended the investigation and lifted the measure of restraint in respect of Ch. 21.", "On 16 June 2000 the Prosecutor’s Office of the Chechen Republic replied to the applicants’ request for information that the criminal investigation into their son’s murder had been transferred to the military prosecutor’s office, which was responsible for investigating crimes committed by servicemen. It was also stated that all further questions should be referred to the military prosecutor’s office in Khankala. On transfer, the case was given the number 34/33/0179-00. 22. On 20 June 2000, upon completion of his secondment in Chechnya, Ch.", "arrived in the town of Pechora in the Pskov region according to the order of the commander of military unit no. 75143. 23. On 28 June 2000 the applicants were informed by a letter from the military prosecutor of military unit no. 20102 that on 2 June 2000 the criminal investigation in respect of warrant officers Ch.", "and S-v. of military unit no. 75143 had been discontinued under Article 5 paragraph 2 of the Code of Criminal Procedure [absence of corpus delicti]. The case file was forwarded for further investigation to the Prosecutor’s Office of the Chechen Republic. 24. On 29 June 2000 the supervising military prosecutor quashed the decision to suspend the investigation.", "25. On 3 July 2000 the Vedeno district civil registration office issued a death certificate for Ayub Salatkhanov, aged 16, who had died on 17 April 2000 from a gunshot wound to the heart. 26. On 21 July and 26 October 2000 serviceman G. was questioned. He submitted that upon his arrival at the crime scene his comrade had told him that he had seen a serviceman climbing from the APC to the ZIL truck in front of it.", "When G. had approached the truck, he had seen a serviceman hiding in the corner. 27. On 22 July 2000 the second applicant and A. were questioned. A. made a statement similar to that of E. 28. On 23 July 2000 another inspection of the crime scene was carried out and E. was again questioned.", "T. was questioned on the same date and submitted that a spent yellow cartridge case had been found at the crime scene. It had been handed over to police officers. On the same date an investigative experiment was conducted. 29. On 24 July 2000 Yu.", "was questioned. He submitted that after the convoy had stopped he had seen a serviceman hiding inside a car. The serviceman had a red face, blue eyes and was of medium height. 30. T-v., apparently of the Vedeno District military commander’s office, who was questioned on the same date, stated that on 17 April 2000 at around 2 p.m. a patrol had come running to headquarters and reported that a military convoy had been stopped in Lenina Street because a serviceman had shot a schoolboy.", "When T-v. arrived at the crime scene, he had been told that a serviceman had climbed from an APC to a ZIL vehicle where other servicemen had tried to hide him. 31. Serviceman I., questioned on the same date, submitted that on 17 April 2000 his fellow servicemen had told him that a serviceman from a convoy moving through Dyshne-Vedeno had killed a boy. When he had arrived at the crime scene, eye-witnesses indicated an APC from which, according to them, shots had been fired. A serviceman had been acting agitatedly around the APC.", "He had appeared to be nervous and had been holding an AKSM 7.62 automatic rifle with no silencer. He had then gone to sit in the ZIL-131 truck. In the course of the search of the ZIL truck officers of the Vedeno District military commander’s office had found a magazine of cartridges and a silencer. 32. Ts., questioned on 24 July and 26 October 2000, submitted that he had been present at the examination of Ayub Salatkhanov’s body and had seen bullet wounds.", "A spent 7.62 cartridge case had been found by T. and immediately handed over to the police officer who had conducted the inspection. 33. On 26 July 2000 an investigative experiment concerning the audibility of shots fired from an AKSM automatic rifle with a silencer was conducted. 34. On 31 July, 16 and 19 October 2000 expert Sh.", "was questioned. 35. On 3 August 2000 a forensic examination of Ayub Salatkhanov’s clothes was completed. 36. On 5 August 2000 servicemen P., K. and P-o were questioned.", "They submitted that after two AKSM automatic rifles with two PBS-1 silencers, including the one seized from Ch., had been returned to the military unit, they had been used according to their purpose. They had not been repaired and no parts of them had been replaced either. 37. On 8 August 2000 Sh-n, a serviceman that had formed a part of the military convoy, submitted that when the convoy had been moving he had seen a boy lying on the ground in the yard of a house. When the convoy had stopped, he had seen a serviceman sitting on the right side of the ZIL-131 truck removing a silencer from his automatic rifle.", "When the serviceman had left the car, there had been no silencer on his automatic rifle. 38. On 16 August 2000 a forensic expert examination was completed. 39. On 9 September 2000 a ballistic expert examination was completed.", "40. On 27 September 2000 serviceman O. was questioned. He submitted that in the convoy it was only special forces servicemen who had had PBS-1 silencers. 41. On 11 October 2000 a forensic examination of Ayub Salatkhanov’s body was completed.", "42. On 15 November 2000 Ch. was charged with the offence and a decision to place him in custody was taken. However, since he was no longer in the Chechen Republic, he was placed on the wanted list. The investigation was suspended on the same date on account of Ch.’s whereabouts being unknown.", "43. On 25 November 2000 a forensic expert’s examination was completed. 44. On 11 March 2001 the military prosecutor of military unit no. 20102 informed the applicants that the investigation had identified the suspect – Ch., warrant officer of military unit no.", "75143. However, the military unit had been relocated out of Chechnya without the military prosecutor’s knowledge. Warrant officer Ch. had absconded and on 15 November 2000 had been placed on the wanted list. 45.", "By a letter dated 27 July 2001 (received by the applicant in December 2001) the military prosecutor of military unit no. 20102 informed the applicants that the serviceman responsible for the murder of their son had been identified. He had been discharged from military service and had absconded. He had been searched for by the officers of the Ostrovskiy district police of the Pskov Region, where his residence was located. The letter further stated that on 15 November 2000 the investigation had been suspended during the search.", "On 25 July 2001 the investigation was resumed, and a request for a search to be carried out was forwarded to the authorities in Ukraine, where the suspect’s parents resided. 46. On 8 August 2001 the Chief Military Prosecutor’s Office informed the applicants that the investigation into their son’s murder had been reopened. The person suspected of the crime had absconded and had been placed on the federal wanted list. 47.", "On 8 October 2001 the Prosecutor’s Office of the North Caucasia Military Circuit informed the applicants that on 2 April 2001 the decision of 15 August 2000 to suspend the proceedings had been quashed and the case file had been forwarded for further investigation to the military prosecutor of military unit no. 20102. The investigation was pending, and the applicants would be informed of the results. 48. After a number of stops and starts, the investigation was again resumed on 17 January 2005.", "Ch.’s whereabouts were established and it was also found that he had changed his name to M. He was subsequently arrested, and on 18 April 2005 the case was committed for trial to the Grozny Garrison Military Court. C. Trial proceedings 49. On 7 July 2006 the Grozny Garrison Military Court dismissed Ch.’s (M.’s) contradictory submissions that, firstly, it had not been him who had shot at Ayub Salatkhanov and, secondly, that he had accidentally pulled the trigger when the vehicle he had been in had gone over a bump in the road. The court found that Ch. (M.) had aimed at Ayub Salatkhanov’s chest, found him guilty of murder and sentenced him to ten years’ imprisonment.", "Ch. (M.) appealed. 50. On 23 November 2006 the North Caucasia District Military Court upheld the judgment on appeal. D. Proceedings for compensation for non-pecuniary damage 51.", "In 2003 the second applicant brought a claim against the Ministry of Finance for compensation for non-pecuniary damage caused by the murder of his son by a serviceman. 52. On 22 July 2003 the Basmanniy District Court of Moscow dismissed the claim. The court held, in particular: “As follows from the evidence in the case, the fact that [the applicant] was caused physical and moral suffering arose as a result of the fulfilment of duties by a serviceman of military unit no. 75143 [Ch.]", "... It is precisely [this military unit] which may be liable if [its serviceman] caused non-pecuniary damage when fulfilling [his] duties.” 53. On 12 February 2004 the Moscow City Court upheld the judgment on appeal. 54. Subsequently, within the framework of the criminal proceedings against Ch.", "(M.), the second applicant brought a civil claim for compensation for non-pecuniary damage in the amount of 10,100,000 Russian roubles (RUR) before the criminal case against Ch. was sent for trial. 55. In the hearing of 29 June 2006 counsel for the second applicant withdrew the civil claim. He explained that the second applicant intended to file a claim for damages against the military unit where Ch.", "(M.) had served within the framework of civil proceedings. The court accepted the withdrawal of the claim and specifically stated that it was open to the second applicant to file it within the framework of civil proceedings. 56. According to the Government, the second applicant did not file any civil claims before the Grozny Garrison Military Court. E. Request for information 57.", "Despite specific requests made by the Court on two occasions, the Government did not submit a copy of the entire investigation file concerning the murder of Ayub Salatkhanov. However, after the application had been declared admissible they submitted an update on the progress of the investigation, copies of judicial decisions and minutes of the hearings, which contained a detailed description of the investigative actions and witnesses’ statements. The Government stated that the documents submitted contained detailed information concerning the conduct of the investigation and the trial and, should the Court require any additional documents, it should specifically request them. II. RELEVANT DOMESTIC LAW 58.", "Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 59. Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions. 60.", "Article 161 of the CCP enshrines the rule that information from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. 61. Article 151 of the Civil Code of the Russian Federation, Part II, in force since 1 March 1996, provides for a right to claim non-pecuniary damage. Article 1100 of the Civil Code provides grounds for compensation of non-pecuniary damage.", "THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION 62. The Government contended that the applicants had failed to exhaust available domestic remedies. In particular, they had not brought civil claims for damages and had not appealed against procedural decisions adopted in the course of the criminal proceedings. 63.", "The applicants averred that the Government had failed to demonstrate the relevance and effectiveness of the domestic remedies invoked. 64. In the present case, the Court dismissed the part of the Government’s objection related to domestic civil remedies at the admissibility stage. At the same time it took no decision about the exhaustion of domestic remedies in criminal law invoked by the Government, having found that this question was too closely linked to the merits. It will now proceed to examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no.", "60272/00, § 73-74, 12 October 2006). 65. The Court observes that the applicants complained to the law enforcement authorities immediately after the killing of Ayub Salatkhanov and that an investigation was pending from 17 April 2000 to 18 April 2005. The applicants and the Government dispute the effectiveness of this investigation. 66.", "The Court considers that the Government’s preliminary objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints. Thus, it considers that these matters fall to be examined below under the substantive provisions of the Convention. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 67. The applicants complained under Articles 2 and 3 of the Convention about their son’s murder and the lack of an effective investigation.", "The Court considers that the complaint falls to be examined under Article 2 of the Convention, which provides: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” A.", "Arguments of the parties 68. In their submissions made prior to the Court’s decision as to admissibility of the present application, the applicants argued that the State was responsible for the murder of their son since at the time of the events Ch. had been fulfilling his duties as a serviceman. They further submitted that the mere institution of the investigation and the granting of victim status to the second applicant were not sufficient to render the investigation effective. The applicants made no further submissions after the application had been declared admissible.", "69. The Government submitted that, in having instituted a criminal investigation into Ayub Salatkhanov’s murder, the Russian authorities had admitted that there had been a violation of his right to life. However, the violation had been the result of the actions of a particular individual and not of State agencies. The investigation conducted had met the requirements of Article 2 of the Convention. Its long duration had been due to the fact that the suspect had absconded and it had taken some time to establish his whereabouts.", "Serviceman Ch. could not have been arrested directly after the incident, because it had been necessary to establish the circumstances of the incident first. In particular, another serviceman was under suspicion and certain versions of the events advanced by the accused, such as the claim that the bullet had ricocheted, required time-consuming investigative experiments. In the Government’s view, the long duration of the investigation alone could not lead to the conclusion that it was ineffective, especially taking into account that it had led to the culprit being convicted and sentenced by domestic courts. B.", "The Court’s assessment 1. General principles 70. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c).", "In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, §§ 146-50; Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports of Judgments and Decisions 1997-VI, pp. 2097-98, § 171; and Oğur v. Turkey [GC], no. 21594/93, § 78, ECHR 1999-III). 71.", "The Court further reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-109, 4 May 2001, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).", "2. Application to the present case 72. The Court observes, firstly, that at the time of the events Ch. (M.) was engaged in a military service. It notes, at the same time, that Ch.", "(M.) did not shoot at Ayub Salatkhanov within a framework of any military operation and that no order had been given to him in this respect. Furthermore, domestic courts found Ch. (M.) guilty of murder, sentenced him to ten years’ imprisonment and acknowledged the second applicant’s right to claim damages. The question arises whether, in accordance with Article 34 of the Convention, the applicants can still be regarded as “victims” of a violation of Article 2. 73.", "The Court reiterates that, according to its case law, the applicant may lose the status of “victim” in instances where “the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999‑VI). 74. As regards the acknowledgement of the violation, the Court observes that the domestic investigation was instituted immediately on the date of the shooting. In the days which followed the authorities took significant investigative measures, having examined the crime scene and the military vehicles that formed part of the convoy, questioned numerous witnesses and conducted investigative experiments.", "The Court does not find the fact that Ch. (M.) was not charged immediately after the events to be evidence of the inefficiency of the investigation, since from the materials in the case it follows that the investigating authorities made diligent efforts to establish the circumstances of the events and to reconcile conflicting versions of events. Likewise, the Court considers that the long duration of the investigation did not detract from the acknowledgement of the violation, since in the present case it was caused by Ch.’s (M.’s) absconding from the investigating authorities and the need to establish his whereabouts, which was further complicated by his change of name. The Court has no evidence to imply that the authorities either acted in bad faith or failed to take all appropriate steps to locate him. It further notes that in the present case the applicants did not allege that they had not been duly informed of the progress of the investigation.", "Finally, the domestic investigation resulted in a trial which led to the serviceman who had killed the applicants’ son being convicted of murder and sentenced to ten years’ imprisonment. The Court thus finds that the domestic investigation was effective for the purposes of Article 2 of the Convention and that the conviction constituted express acknowledgement by the authorities of a violation of Ayub Salatkhanov’s right to life. 75. As regards the redress afforded, the Court notes, firstly, that the proceedings brought by the second applicant in 2003 against the Ministry of Finance should not be taken into account because they had been instituted before Ch.’s (M.’s) conviction and against an improper defendant. Yet subsequently the second applicant filed a civil claim for damages against Ch.", "(M.) within the framework of criminal proceedings against him. However, later he withdrew the claim and, although the domestic courts acknowledged his right to file it within the framework of civil proceedings, has not re-filed it. 76. The Court reiterates that in Saukaitis v. Lithuania (dec.), no. 41774/98, 14 November 2000, it held that the applicant’s entitlement to claim damages for a violation of Article 6 of the Convention constituted sufficient redress to deprive him of victim status under the above provision.", "Likewise, in Caraher v. the United Kingdom (dec.), no. 24520/94, 11 January 2000, the Court held that “the possibility of obtaining compensation for the death of a person will generally, and in normal circumstances, constitute an adequate and sufficient remedy for a substantive complaint of an unjustified use of lethal force by a State agent in violation of Article 2 of the Convention”. 77. The Court observes that, in the present case, the second applicant’s withdrawal of his claim for damages within the framework of criminal proceedings could be regarded as a waiver of his right to obtain redress. However, in any event, the applicants retained their entitlement to claim redress within the framework of civil proceedings, which was specifically acknowledged by the domestic courts, and there are no grounds to consider that there are circumstances which would absolve Ch.", "(M.) from any civil liability which exists. 78. Having regard to the foregoing, the Court concludes that in these circumstances the applicants can no longer claim to be victims, within the meaning of Article 34 of the Convention, of a violation of Article 2 of the Convention. 79. In view of this finding, the Court does not consider it necessary to decide on the limb of the Government’s preliminary objection that was joined to the merits of the case.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 80. The applicants complained under Articles 6 and 13 of the Convention about the lack of an effective investigation into their son’s murder. The Court considers that, inasmuch as the complaint is related to the applicant’s entitlement to compensation, it falls to be examined under Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 81. In their submissions made prior to the Court’s decision as to the admissibility of the present application the applicants maintained the complaint.", "They made no further submissions. 82. The Government insisted that the investigation in the present case had been efficient and that the applicants were entitled to compensation. However, the second applicant withdrew his civil claim for damages of his own motion. 83.", "The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order, where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). Given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005).", "The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 183, 24 February 2005). 84. The Court observes that when the applicants instituted the present proceedings they had an “arguable claim” of a violation of Ayub Salatkhanov’s right to life under Article 2 of the Convention. However, as set out in paragraphs 72-78 the Court decided that the applicants could no longer claim to be victims of the above provision having found that, firstly, the domestic authorities conducted an effective investigation into the killing of the applicants’ son which led to punishment of the serviceman responsible and, secondly, that the applicants were entitled to claim damages.", "85. Having regard to its above finding that the applicants lost their victim status in respect of their complaints under Article 2 and the reasons for this decision, the Court considers that, in the circumstances, no separate issue arises in respect of Article 13 read in conjunction with Article 2 of the Convention. IV. OBSERVANCE OF ARTICLE 38 § 1 (a) of the convention 86. The Government’s failure to submit a copy of the entire investigation file requested by the Court at the communication stage gives rise to issues under Article 38 § 1 (a) of the Convention, which provides: Article 38 “1.", "If the Court declares the application admissible, it shall (a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities; ...” 87. In their observations made before the decision on admissibility the Government stated that the submission of the entire case file would be contrary to Article 161 of the Code of Criminal Procedure. After the decision on admissibility the Government provided an update on the progress of the investigation, copies of judicial decisions and minutes of the hearings, which contained detailed descriptions of the investigative steps that had been taken and witnesses’ statements. They stated that those documents contained detailed information concerning the conduct of the investigation and the trial and, should the Court require any additional documents, it should specifically request them. The Court did not make any further requests.", "88. The Court reiterates that proceedings in certain types of applications do not in all cases lend themselves to a rigorous application of the principle whereby a person who alleges something must prove that allegation and that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications. 89. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. It is inherent in the proceedings relating to cases of this nature, where individual applicants accuse State agents of violating their rights under the Convention, that in certain instances it is only the respondent State that has access to information capable of corroborating or refuting these allegations.", "A failure on a Government’s part to submit such information which is in their possession without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. In a case where the application raises issues of the effectiveness of the investigation, the documents of the criminal investigation are fundamental to the establishment of the facts and their absence may prejudice the Court’s proper examination of the complaint both at the admissibility and at the merits stage (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 71, ECHR 1999-IV). 90. The Court notes that the Government refused to submit a copy of the entire investigation file opened as a result of the murder of the applicants’ son in response to the communication of the complaints.", "They referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see, among other authorities, Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006‑... (extracts)). 91. The Court reiterates that Article 38 § 1 (a) of the Convention is applicable to cases which have been declared admissible.", "The Court cannot find that the delay in submitting the information requested prior to the admissibility decision gave rise to issues under this provision or otherwise prevented the proper examination of the present case. It further notes that after the application had been declared admissible the Government submitted documents which contained detailed information on the progress and results of the investigation. Furthermore, the Government were prepared to examine further requests of the Court for any particular documents; however, the Court made no such requests. 92. The Court notes that the Government submitted documents containing key elements that considerably facilitated the examination of the present case by the Court.", "In these circumstances, the Court does not consider that the Government’s conduct has been such as to obstruct the conduct of an effective investigation in the present case and thus contrary to Article 38 § 1 (a). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Joins to the merits the Government’s preliminary objection and holds that it is not necessary to decide on it; 2. Holds that the applicants may no longer claim to be “victims” of the alleged violation of Article 2 of the Convention; 3. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violation of Article 2 of the Convention; 4.", "Holds that there has been no failure to comply with Article 38 § 1 (a) of the Convention; Done in English, and notified in writing on 16 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André WampachChristos Rozakis Deputy RegistrarPresident" ]

[ "THIRD SECTION CASE OF RAGUŽ v. SERBIA (Application no. 8182/07) JUDGMENT STRASBOURG 7 April 2015 FINAL 07/07/2015 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Raguž v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Ján Šikuta,Dragoljub Popović,Kristina Pardalos,Johannes Silvis,Valeriu Griţco,Iulia Antoanella Motoc, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 17 March 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "8182/07) against the Republic of Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Vinko Raguž (“the applicant”), on 8 February 2007. 2. The applicant was initially represented by Mr Mihailo Petrović, a lawyer practicing in Gornji Milanovac, and subsequently by Ms V. Knežević, a lawyer practising in Dubrovnik. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3.", "The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto, about the non-enforcement of the final domestic judgment rendered in his favour. 4. On 8 March 2012 the application was communicated to the Government. 5.", "Further to the notification under Article 36 § 1 of the Convention and Rule 44 § 1 (a), the Croatian Government did not wish to exercise their right to intervene in the present case. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1940 and lives in Dubrovnik. 7.", "On 18 February 2003 the Municipal Court (Opštinski sud) in Gornji Milanovac ordered V.T. (“the debtor”) to pay to the applicant 2,500 Euros (“EUR”) plus statutory interest on account of debt and 187,750 Serbian dinars (“RSD”), which was approximately EUR 3,028 at the time of the delivery of the judgment, for the costs of the civil proceedings. 8. On 23 August 2003 the District Court (Okružni sud) in Čačak, on appeal, reduced the award in respect of costs to RSD 97,250 (approximately EUR 1,568) and upheld the first-instance judgment for the remainder. 9.", "The judgment of 18 February 2003, as amended on 23 August 2003, became final on 5 September 2003. 10. On 23 October 2003, at the applicant’s request, the Municipal Court ordered the enforcement of the judgment by seizure and sale of the debtor’s movable assets. 11. Following three failed attempts at seizure of the debtor’s movable assets, on 21 December 2004 the Municipal Court informed the applicant that the enforcement by seizure and sale of the judgment debtor’s property was impossible due to the debtor’s indigence.", "12. On 13 July 2005 the Municipal Court terminated the enforcement proceedings. This decision was quashed on appeal on 24 October 2005 by the Municipal Court. 13. Following a further attempt at seizure of the debtor’s movable assets, on 11 October 2007 the Municipal Court stayed the enforcement proceedings (prekida se postupak izvršenja) because of the debtor’s death in the meantime.", "14. On 3 June 2008 the applicant proposed that the enforcement proceedings be continued by seizure and sale of the deceased debtor’s movable and immovable estate. In support of his request, the applicant submitted a court decision of 2 October 2001 by which the debtor and two other persons had previously inherited a house with a plot of land. He also requested the court to appoint a temporary representative for the debtor’s heirs in accordance with Article 32 of the Enforcement Procedure Act. On 20 June 2008 the Municipal Court rejected the applicant’s request.", "This decision was quashed on appeal on 27 March 2009 by the Municipal Court. 15. On 16 April 2009 the Municipal Court invited the applicant to provide the names and the addresses of proposed debtors, indicate the debtor’s heirs, propose the means of enforcement and details and proof of ownership concerning immovable assets, all within three days, failing which his request would be rejected. It was further specified that no appeal was allowed against this decision. In the reasoning, the court found that the names and the addresses of the debtor’s potential heirs were available from the decision of 2 October 2001, and that therefore, there was no need for the appointment of a temporary representative.", "On 8 June 2009, however, the Municipal Court instructed the applicant to advance the costs for a temporary representative within eight days. It was also specified that no appeal was allowed against this decision. 16. On 27 August 2009 the Municipal Court rejected the applicant’s request for continuation of the enforcement proceedings because of his failure to abide by the orders of 16 April and 8 June 2009. This decision was upheld on appeal on 13 October 2009.", "17. According to the Government, there are eight heirs of the deceased debtor, the names and addresses of which have been known. II. RELEVANT DOMESTIC LAW A. The relevant enforcement procedure rules 18.", "The relevant provisions of the Enforcement Procedure Act 2000 (Zakon o izvršnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – “OG FRY” - no. 28/00, 73/00 and 71/01), the Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in the Official Gazette of the Republic of Serbia – “OG RS” - no. 125/04) and the Enforcement Procedure Act 2011 (Zakon o izvršenju i obezbeđenju; published in OG RS nos. 31/11 and 99/11) are set out in Bulović v. Serbia, no. 14145/04, §§ 29-30, 1 April 2008; Vukelić v. Montenegro, no.", "58258/09, §§ 43-45, 4 June 2013; and Tešić v. Serbia, nos. 4678/07 and 50591/12, § 43, 11 February 2014. B. The relevant civil procedure rules 19. The Civil Procedure Act 2004 (Zakon o parničnom postupku, published in OG RS nos.", "125/04 and 111/09) was in force from 22 February 2005 until 1 February 2012. Article 214 of the Act provided that the proceedings were stayed if a party died. Article 217 further provided for the continuation of the proceedings stayed because of a party’s death when the heir or representative of the estate took over the proceedings or when the court invited them to do so at the request of the opposing party. 20. The Civil Procedure Act 1977 (Zakon o parničnom postupku, published in the OG SFRY nos.", "4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91, as well as in OG FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02), which was in force until 22 February 2005, contained the same provisions (see Articles 212 § 1 (1) and 215 § 1 thereof). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 21.", "The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto, about the non-enforcement of the court judgment rendered in his favour, which became final in 2003. In so far as relevant, these Articles read as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions...” A. Admissibility 22. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Arguments of the parties 23.", "The Government submitted that the enforcement proceedings had been conducted with due diligence. The delays were attributable partly to the debtor’s indigence and partly to the applicant, who had made a proposal that the enforcement proceedings be continued against the debtor’s immovable assets only on 3 June 2008 and had failed to abide by the court’s orders of 16 April and 8 June 2009. In addition, the Government argued that the present case was complex because of the death of the debtor and the fact that the applicant lived abroad. 24. The applicant reaffirmed his complaints.", "2. The relevant principles 25. The Court reiterates that Article 6 § 1 of the Convention protects the implementation of final, binding judicial decisions, which, in States that accept the rule of law, cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be prevented, invalidated or unduly delayed (see, among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II). In terms of Article 1 of Protocol No.", "1, the Court notes that a “claim” can constitute a “possession” if it is sufficiently established to be enforceable (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III) and reiterates that it is under this provision, as well as Article 6 § 1 of the Convention, that the State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). The State must also make sure that the procedures provided for in the relevant domestic legislation are complied with (see ibid, § 91). 26.", "Further, the Court notes that the State’s responsibility for enforcement of a judgment against private persons extends no further than the involvement of State bodies in the enforcement procedures and that once the enforcement procedures were closed by a court in accordance with the national legislation, the responsibility of the State ends (see Shestakov v. Russia (dec.), no. 48757/99, 18 June 2002). Moreover, a failure to enforce a judgment because of the debtor’s indigence cannot be held against the State unless and to the extent that it is imputable to the domestic authorities, for example, to their errors or delay in proceeding with the enforcement (see, mutatis mutandis, Omasta v. Slovakia (dec.), no. 40221/98, 10 December 2002). 27.", "Lastly, the Court reiterates that enforcement proceedings by their very nature need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000‑IV). 3. Application of the above principles to the facts of the present case 28. The Court observes, in the first place, that the judgment of 18 February 2003, as modified on 23 August 2003, has remained unenforced to date.", "Secondly, having adopted the enforcement order, the domestic courts were under an obligation to proceed ex officio. Thirdly, Serbia ratified the Convention on 3 March 2004, meaning that the proceedings in question have been within the Court’s competence ratione temporis for a period of almost eleven years. Fourthly, during this time, the domestic courts attempted four times to seize the debtor’s movable assets, terminated the enforcement proceedings, which decision was quashed on appeal, and most strikingly, took no substantive steps after the proceedings were stayed on 11 October 2007. Fifthly, the Municipal Court failed to inform the deceased debtor’s heirs, the names and addresses of which had been apparently known to it, about the enforcement proceedings or else, to appoint them a temporary representative, contrary to Article 32 of the Enforcement Procedure Act 2000. Lastly, the applicant cannot be reproached for having failed to abide by contradictory instructions of the Municipal Court orders of 16 April and 8 June 2009.", "The Court therefore considers that the Serbian authorities did not act diligently or take sufficient steps to execute the final judgment of 18 February 2003, as modified on 23 August 2003. 29. There has accordingly been a breach of Article 6 § 1 of the Convention and a separate breach of Article 1 of Protocol No. 1. II.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 30. 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.” 31. In the initial application, the applicant’s former representative claimed on behalf of the applicant pecuniary damage in the sum of the amount of the judgment made in his favour on 18 February 2003 by the Municipal Court, namely EUR 2,500 with appropriate interest, plus EUR 2,000 for the costs of civil and enforcement proceedings, EUR 1,500 for non-pecuniary damage and EUR 562.50 for the costs of the proceedings before the Court. In his subsequent sixteen submissions, he requested compensation for pecuniary and non-pecuniary damages and postal expenses in line with the practice of the Court and EUR 1,000 for each of his submissions. Following transmission by the Court of the Government’s initial observations, the applicant’s newly appointed representative referred to those claims within the time-limit imposed.", "32. The Government contested those claims. They argued, in particular, that the claims were not duly specified and should, therefore, be rejected. A. Damage 33.", "The Court considers that in the circumstances of the present case the respondent State must ensure, by appropriate means, the full execution of the final Municipal Court judgment of 18 February 2003, as amended on 23 August 2003 (see, mutatis mutandis, EVT Company v. Serbia, no. 31025/05, § 60, 21 June 2007, and Krstić v. Serbia, no. 45394/06, § 94, 10 December 2013). 34. The Court accepts that the applicant has suffered some non-pecuniary loss arising from the breaches found, for which he should be compensated.", "Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,500 in this respect, plus any tax that may be chargeable. B. Costs and expenses 35. 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. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress.", "The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met (see for example, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 158, ECHR 2014). 36. In the present case, the Court finds that the claim for costs and expenses has not been substantiated and that no itemised bills have been presented in support of it. Consequently, the Court rejects this claim.", "C. Default interest 37. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No.", "1; 3. Holds (a) that the respondent State shall ensure, by appropriate means, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the full execution of the final Municipal Court judgment of 18 February 2003, as amended on 23 August 2003; (b) that the respondent State is to pay the applicant, within the same period, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "SECOND SECTION CASE OF K.M.C. v. HUNGARY (Application no. 19554/11) JUDGMENT STRASBOURG 10 July 2012 FINAL 19/11/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of K.M.C.", "v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President,Danutė Jočienė,Isabelle Berro-Lefèvre,András Sajó,Işıl Karakaş,Paulo Pinto de Albuquerque,Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 19 June 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 19554/11) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms K.M.C. (“the applicant”), on 22 March 2011. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).", "2. The applicant was represented by Mr A. Kádár, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. 3. The applicant submitted under Article 6 of the Convention that her dismissal could not be effectively challenged in court for want of reasons given by the employer.", "4. On 12 September 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5.", "The applicant was born in 1973 and lives in Pécel. 6. The applicant was a civil servant working in the service of an administrative inspectorate. Applying Act no. LVIII of 2010 on the Legal Status of Government Officials (see below), her employer dismissed her from service on 27 September 2010 without giving any reasons for that dismissal.", "7. The applicant did not challenge this measure in court, considering that in the absence of reasons for her dismissal, she could not sue her former employer with any prospect of success. The statutory time-limit in this respect expired on 26 October 2010. 8. On 18 February 2011 the Constitutional Court annulled as unconstitutional the impugned section 8(1) of Act no.", "LVIII of 2010, as of 31 May 2011 (see paragraph 16 below). 9. On 6 May 2011 the Constitutional Court gave a decision (see paragraph 17 below) concerning the non-applicability of laws, declared unconstitutional, in cases still pending before an ordinary court. II. RELEVANT DOMESTIC AND INTERNATIONAL TEXTS 10.", "Act no. XX of 1949 (the Constitution in force at the material time) provided as follows: Article 57 “(1) In the Republic of Hungary, everyone shall be equal before the law and entitled to have any charges brought against him as well as his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law.” Article 70 “(6) All Hungarian citizens shall have the right to hold a public office in accordance with their suitability, qualifications and professional knowledge.” 11. Section 8(1) of Act no. LVIII of 2010 on the Legal Status of Government Officials, as in force between 6 July 2010 and 31 May 2011, provided that a civil servant could be dismissed from service, with a notice period of two months, without the employer giving any specific reasons for the dismissal. 12.", "Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities provides as follows: Section 8 “Provisions resulting in a situation where one person or group is treated less favourably than another is, has been or would be treated in a comparable situation on account of their real or presumed a) sex, b) racial origin, c) colour, d) nationality, e) belonging to a national or ethnic minority, f) mother tongue, g) disability, h) state of health, i) religious or ideological conviction, j) political or other opinion, k) family status, l) motherhood (pregnancy) or fatherhood, m) sexual orientation, n) sexual identity, o) age, p) social origin, q) financial status, r) the part-time nature of an employment or other work relationship, s) membership in an interest representation organisation, t) other status, attribute or characteristic (hereinafter collectively: characteristics) shall amount to direct negative discrimination.” Section 19 “(1) In proceedings instituted on account of a violation of the equal treatment requirement, the injured party or the party entitled to assert public interest claims shall substantiate that: a) the injured person or group has suffered a disadvantage, or – in case of asserting public interest claims – an imminent danger thereof exists, and b) the injured party or group did at the time when the violation of law was committed – actually or according to the presumption of the violator – possess a characteristic specified in Article 8. (2) If the case described in subsection (1) has been substantiated, the other party shall bear the burden of proving that: a) the circumstances substantiated by the injured party or the party entitled to assert public interest claims did not exist, or b) the party complied with the equal treatment requirement, or in respect of the given relationship he was not obliged to comply with the equal treatment requirement.” Section 22 “(1) The following shall not amount to violation of the equal treatment requirement: a) proportionate discrimination justified by the nature or characteristic of the work and based on all the relevant and lawful conditions that are to be taken into consideration for the employment, b) discrimination on the ground of religious or other ideological conviction or national and ethnic origin directly flowing from the spirit basically determining the nature of the organisation, justified in view of the content or nature of the occupational activity at issue, and amounting to genuine occupational requirement.” 13. Act no. XXII of 1992 on the Labour Code provides: Section 4 “(2) The exercise of a right shall, in particular, be construed improper if it is intended for or leads to the impairment of the rightful interests of other persons, the limitation of other persons’ potential for interest assertion, their harassment, or the suppression of the expression of their opinion.” Section 89 “(2) With the exceptions specified in subsection (6), employers shall be under a duty to give reasons for a dismissal.", "The reasons given shall clearly indicate the cause of dismissal. In case of dispute the genuineness and adequacy of the reasons given for the dismissal shall be proved by the employer. (6) The employer shall be under no duty to give reasons for the ordinary dismissal of an employee if the employee is to be considered a pensioner within the meaning of section 87/A (1) a)-g).” Section 90 “(1) Employers shall not terminate an employment by ordinary dismissal during the periods specified below: a) incapacity for work due to illness ..., b) for the period of sick leave granted for caring for a sick child, c) unpaid leave taken for nursing or caring for a close relative (section 139), d) during a treatment related to a human reproduction procedure specified under a separate Act, during pregnancy, for three months after giving birth, and maternity leave [subsection (1) of section 138], e) during unpaid leave taken for the purpose of nursing or caring for children [subsection (5) of section 138], until the child reaches the age of three, during the period of eligibility for child-care allowance, irrespective of taking any unpaid leave, f) during regular or reserve army service, from the date of receiving the enlistment orders or the notice for the performance of civil service, g) the entire period of incapacity for work of persons receiving rehabilitation benefits under a separate Act of Parliament.” 14. Act no. XXXII of 1989 on the Constitutional Court (as in force at the material time) provided: Section 38 “(1) Observing the unconstitutionality of a law applicable in a case before him ... the judge shall ... submit a motion to the Constitutional Court.", "(2) Anyone alleging that a law applicable in his case pending before a court is unconstitutional may file a request initiating the judge’s action specified under subsection (1).” Section 48 “(1) Anyone who suffered a violation of law on account of the application of an unconstitutional law and has exhausted all other available legal remedies or no other legal remedy is provided for him may, on account of the violation of his rights enshrined in the Constitution, file a constitutional complaint with the Constitutional Court. (2) The constitutional complaint shall be filed in writing within sixty days from the service of the final decision.” 15. Act no. III of 1952 on the Code of Civil Procedure provides as follows: Section 262/A “According to the decision of the Supreme Court, a final judgment shall be subject to reopening if a constitutional complaint is sustained by the Constitutional Court with retroactive exclusion, in the given case, of the applicability of the law declared unconstitutional.” 16. Constitutional Court decision no.", "8/2011. (II.18.) AB contains the following passages: “IV. 1. ...", "Within the confines of the Constitution, the legislator enjoys great freedom in regulating public service relationships. ... In 1992 in the public sector – where the legal positions of both the employers and the employees are determined by their dependence on the State budget – public-law regulations, basically corresponding to the characteristics of the closed public service system, were introduced. The legal status of the individuals who perform work in the service of the State was – according to the specific features of the activities performed – governed by the legislature in separate Acts of Parliament. ...", "The basic feature of the closed public service system is that the content of the public service relationship and the rights and duties of the subjects of the legal relationship are governed not by the parties’ agreement but by statutes, by law. ... The content of the public service relationship is regulated under the law, regard being had to the fact that public servants carry out the tasks of the State, and, in performing their tasks, they exercise public powers, consequently – compared to other employees – additional statutory requirements must be imposed on them. The activity of public servants must serve the interest of the public, it must be professional, impartial, devoid of influence and bias, therefore public servants must meet up-to-date and high-standard professional requirements, must bear particular responsibility for their work and are subject to strict conflict-of-interest rules; however, the incomes earned in the public service remain below the wages that can be obtained in the private sector, since the source of public servants’ remuneration is the State budget. The starting point for the closed public service system ... is that « additional requirements – compliance with which may and must be demanded from persons engaged in public service – may only be imposed in return for additional entitlements ».", "Such additional entitlements include the career system regulated and the salary guaranteed in an Act of Parliament, the predictable and safe ‘public service life career’ system and the additional allowances. A basic characteristic of the closed public service system is the stability of public service relationship, namely that a public servant may be removed from office only where the conditions specified in an Act of Parliament are met. While until the 1980s the public service systems of various States were characterised by the gradual extension of the closed public service system, since then a strongly critical approach to the closed systems has become more and more dominant. As a consequence, in almost all European States, public service reform processes have been launched in order to enhance the efficiency, performance and standards of the public administration. The direction of the reforms is to loosen the rigidity of the closed system, and to bring it closer to the regulation of private sector labour relations.", "The method generally applied for the loosening of the rigidity of the closed system is the loosening of the previously strictly interpreted concept of ‘non-dismissibility’ and the widening of the grounds of dismissal. The Hungarian Act on the Legal Status of Public Servants (“Ktv.”) has never been based on the principle of ‘non-dismissibility’, as it has widely recognised the possibility of dismissing public servants from office and the grounds and conditions of dismissal have even been widened in the period having elapsed since 1992. ... 2. ... The Act on the Legal Status of Government Officials (“Ktjt.”) – with its rules on the termination of government official legal relationship – introduced essential changes in the system of public service as it had been created under the Ktv.", "and terminated the relative stability of the public service relationship guaranteed under the Ktv. ... The Ktv. rules on the termination of the legal relationship by dismissal from office not being applicable ... the government officials’ legal relationship may be terminated by release from office by the employer without giving reasons. ... 3.", "... In the context of labour relations as regulated under the Labour Code (“Mt.”) ... the Constitutional Court [...] evaluated the duty of giving reasons – interpreted as a restriction on the employer’s right freely to dismiss an employee – as a privilege providing additional protection for employees, to which protection no person had a constitutional right. The employer’s right freely to dismiss an employee can only be interpreted in the context of employment relationships based on contract, not in the context of civil service relationship based on the Ktjt. In public service relationships the right of dismissal from office is based not on the freedoms of contract but an Act of Parliament; in case of dismissal from office by the employer the duty to give reasons cannot be regarded as a “preference rule”; on the contrary, it is a guarantee flowing from the nature of the legal relationship. ...", "In public service relationships, the statutory regulations concerning the grounds of dismissal from office constitute an issue of constitutionality, it being a guarantee corresponding to the specific features of public service relationships. [These] regulations and, consequently, the obligation to give reasons for dismissal has ... been regarded by the Constitutional Court ... as a guarantee having constitutional significance ... 4. ... The special features of public-servant and government-official legal relationships ... are determined by the fact that ... officials hold public offices, perform State duties, adopt and prepare State decisions ... therefore those relationships are basically public-law relationships by their nature. Article 70(6) regulates the right to hold a public office as citizens’ fundamental right.", "The protection of the right to hold a public office shall primarily mean that the State cannot make employment to public offices dependent on conditions which exclude, without constitutional reasons, Hungarian citizens from the possibility of acquiring a public office or make it impossible for a citizen or a group of citizens to hold a public office. ... The constitutional protection flowing from the right to hold a public office does not mean that the holder of a public office cannot be dismissed from office. ... Within the confines of the Constitution, the legislature enjoys a wide margin of freedom in regulating the grounds for release from office; this freedom, however ... shall not extend to granting free and unrestricted power to the person exercising the employer’s rights to dismiss an incumbent from office.", "Free decisional power granted without any statutory limitation to the person exercising the employer’s rights ... restricts, according to the Constitutional Court, in an unconstitutional manner the right to hold a public office, provided for by Article 70(6) of the Constitution. [It is required] that the substantive-law framework of the employer’s decision be determined in an Act of Parliament. ... 5. ... As to government officials’ dismissal from office, the absence of grounds for dismissal and the lack of any statutory rules concerning the employer’s obligation to give reasons endangers the ‘party-neutrality’, the independence from political influence, the impartiality and, therefore, the lawfulness of decisions of the public administration. Officials working in the organisation of public administration perform their tasks in a strictly hierarchical organisation.", "[If] government officials are not granted protection from dismissal from office, the person exercising the employer’s rights may, at any time and without giving reasons, discontinue their employment, [and] they cannot be expected openly to stand up for their professional and legal position, if they risk losing their jobs. ... 6. ... The general judicial legal protection enshrined in Article 57(1) of the Constitution is also guaranteed by Article 6 § 1 of the European Convention on Human Rights. In its recent case-law, the European Court of Human Rights – which has gradually extended the applicability of Article 6 § 1 to labour disputes concerning the service of civil servants (Frydlender v. France [GC], no.", "30979/96, ECHR 2000‑VII; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007‑II; Iordan Iordanov and Others v. Bulgaria, no. 23530/02, 2 July 2009) – considers the right to effective judicial review as part of the right to a fair trial included in the right to access to a court. For the European Court of Human Rights, the judicial legal protection is not effective if there is a procedural or substantive obstacle to a genuine judicial examination of the parties’ claims on the merits (Delcourt v. Belgium, 17 January 1970, Series A no. 11; Barberà, Messegué and Jabardo v. Spain, 6 December 1988, Series A no.", "146). ... The Constitutional Court holds that by failing to regulate the statutory conditions of dismissal from office by the employer and by allowing for the possibility of not giving reasons for the decision, the legislature disproportionately restricted the right of government officials to judicial legal protection, guaranteed under Article 57(1) of the Constitution. In the absence of an obligation to give reasons and of any rules providing guidance for the determination of the lawfulness of a dismissal, the scope of cases (nullity of and barrier to dismissal, violation of equal treatment, misuse of rights) in which a government official may turn to court with any prospect of success and in which the court can decide on the merits of a dismissal has become significantly reduced. Under the Ktjt., in public service-related legal disputes the unlawfulness of a dismissal by the employer must be proved by the government official.", "An exception to this rule is made in cases when the legal dispute is based on a violation of the equal treatment requirement; in such proceedings – under section 19 of Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities – the injured party needs only to substantiate the violation, and it is for the employer to prove that he complied with the equal treatment requirement. Public servants may also turn to court for improper use of rights, violating section 4 of Mt. ... As it can be concluded from the reasoning of the Act, section 8 (1) of the Ktjt. allows – in the interest of simpler realisation of government endeavours – for the possibility of the termination by the employer of government officials’ legal relationship without any legal limits.", "... The Constitutional Court holds that this vulnerable position of government officials, their being treated as “means” for resolving State tasks, is contrary to human dignity.” 17. Constitutional Court decision no. 35/2011. (V.6.)", "AB contains the following passages: “1. The Constitutional Court holds that it is a constitutional requirement that legal disputes put before a judge be determined on the basis of constitutional laws. If a judge perceives the unconstitutionality of a law applicable in the case pending before the court, he shall ... be obliged to initiate proceedings before the Constitutional Court, under section 38(1) of Act no. XXXII of 1989 on the Constitutional Court (“Abtv.”). 2.", "In the ‘concrete norm control’ proceedings instituted upon a judge’s initiative, the Constitutional Court may pronounce a general prohibition of the application of the law found unconstitutional in all civil actions with identical factual basis, to be determined under the same law. If only specific, rather than general, prohibition of application has been ordered by the Constitutional Court, the latter shall – upon a further initiative of the judge – conduct the proceedings motioned by the judge solely in respect of the prohibition of application of the law. The legal consequences of the Constitutional Court ruling on the general or specific prohibition of application shall be drawn by the judge in charge who shall deliver a decision in the action in compliance with the ruling. 3.1. An essential objective of the Constitution-protecting tasks of the Constitutional Court is to prevent the prevalence of unconstitutional norms in the legal system.", "The judge authorised to determine individual legal disputes ... is bound to adopt a decision on the basis of the constitutional interpretation of the applicable law. However, in case of unconstitutionality irresolvable by the interpretation of the law, the judge – lacking the power to set aside the law – shall necessarily cooperate with the Constitutional Court, on the basis of his statutory obligation. To put it another way, in case of unconstitutionality irresolvable by the interpretation of the law, the litigant’s right to a lawful judge shall only prevail in the course of the Constitutional Court proceedings. ... The judge turning to the Constitutional Court shall, on the basis of his obligation flowing from Article 50(1) of the Constitution, act in order to protect the individual rights of the parties concerned in the legal dispute, but he can only comply with this constitutional obligation upon the Constitutional Court’s decision on the merits of the case.", "... 3.5. Thus, the purpose of the institution of the judge’s initiative is partly to enforce the litigant’s fundamental right to a lawful judge, and – beyond the abstract protection of constitutionality – partly to prevent that any individual legal dispute be determined ... on the basis of an unconstitutional law. Thus, when in a given litigation the judge – complying with his constitutional obligation – initiates an examination of the constitutionality of the applicable law, the scope of the unconstitutionality found by the Constitutional Court shall, as a rule, extend to all pending litigations having the same factual and legal basis as the one giving rise to the Constitutional Court proceedings. The legal consequences of the unconstitutionality found and of the general prohibition of application imposed as a result of the examination of the constitutionality in the ‘concrete norm control’ proceedings shall be drawn by the judges sitting in those pending legal actions which do not form part of the Constitutional Court proceedings but have arisen from an identical factual basis and have to be determined under the same law. ....” 18.", "The European Union Charter of Fundamental Rights provides as follows: Article 30 – Protection in the event of unjustified dismissal “Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices.” According to the Explanations relating to the Charter of Fundamental Rights [2007/C 303/02)], Article 30 draws on Article 24 of the revised European Social Charter. 19. The revised European Social Charter provides as follows: Article 24 – The right to protection in cases of termination of employment[1] “With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: a. the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; b. the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief. To this end the Parties undertake to ensure that a worker who considers that his employment has been terminated without a valid reason shall have the right to appeal to an impartial body.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 20.", "The applicant complained that by not having been given reasons for her dismissal her right of access to a court was effectively frustrated in breach of Article 6 § 1 of the Convention, which reads as relevant: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 21. The Government contested that argument. A. Admissibility 1. The Government’s arguments 22. The Government submitted that the applicant’s claim was of a public-law nature and fell outside the material scope of the application of Article 6 of the Convention, therefore it was incompatible ratione materiae with its provisions, within the meaning of Article 35 § 3 (a).", "They stressed that although access to a court was not excluded expressly in respect of the right claimed by the applicant, this could not create a substantive right under Hungarian law, to be recognised as a civil right for the purposes of Article 6 of the Convention. 23. Furthermore, the Government argued that the applicant had not exhausted domestic remedies in that she had not instituted proceedings before the labour court; had she done so, an eventual final judgment against her could have been challenged before the Constitutional Court. In the light of the Constitutional Court’s decision of 18 February 2011(see paragraph 16 above), read in conjunction with the one of 6 May 2011 (see paragraph 17 above), the Constitutional Court would have most probably delivered a decision excluding the applicability of the unconstitutional law in the applicant’s case, resulting in the re-opening of the labour-court proceedings. Moreover, if the applicant’s would-be labour action had been pending at the material time, the labour court would have had the duty – in accordance with the Constitutional Court’s decision of 6 May 2011 – to initiate proceedings before the Constitutional Court in order to have the non-applicability of the unconstitutional law examined in that pending litigation.", "24. Finally, in the Government’s view, the applicant’s right of access to a court in order to protect her eventual reputational or pecuniary rights related to her employment was not affected by the removal of the employer’s obligation to give reasons for her dismissal. Since no reasons had been given for the dismissal at all, the latter could not possibly imply inaptitude on the employee’s side or prejudice the applicant’s reputation in any manner. Moreover, the alleged pecuniary interests had remained claimable in court, independently of the absence of reasons; in any case, they were not sufficient to create a civil right to remain employed as a civil servant. 2.", "The applicant’s arguments 25. The applicant argued that, in the absence of express exclusion of access to a court for legal disputes of civil servants, the issue was not excluded from the ambit of Article 6 of the Convention. In addition, she submitted that a labour dispute related to the dismissal of a civil servant inevitably carried pecuniary consequences that obviously fell into the category of “civil rights and obligations”. 26. As to the exhaustion of domestic remedies, the applicant pointed out that a constitutional complaint could not be considered as a means of direct and speedy protection of the rights guaranteed by the Convention, especially in that a complainant must have lost a labour law action prior to a constitutional procedure.", "Moreover, the Constitutional Court would have decided on the non-applicability of an unconstitutional provision within its discretionary powers, therefore a complaint to it was no effective remedy. 27. In addition, the applicant submitted that both Constitutional Court decisions in question post-dated the deadline for her to initiate labour court proceedings, that is, thirty days after the communication of dismissal. Thus she could not possibly benefit either from the annulment of the impugned law (see paragraph 16 above) or from the change of the Constitutional Court’s interpretation of non-applicability (see paragraph 17 above). In any case, to the applicant’s knowledge, the labour courts’ practice was not in line with the Government’s suggestion in that no referrals to the Constitutional Court were put in place by the labour courts.", "3. The Court’s assessment 28. The Court notes that the Government reproached the applicant for not having filed a labour action, available in the circumstances, which would have subsequently enabled a Constitutional Court scrutiny of the non-applicability of the impugned provision in her particular case. However, the Court notes at the outset that such an action – in which the applicant should have challenged her dismissal, whose reasons were entirely unknown to her – could only have been a formal motion. For the Court, the applicant cannot be expected to have made such an attempt in the circumstances.", "Moreover, the Constitutional Court decisions referred to by the Government undisputedly post-dated, by several months, the time-limit relevant for the applicant’s potential labour-law action and cannot therefore be attributed any relevance. In any case, the Court takes the view that it cannot speculate about the labour-court judge potentially referring the case to Constitutional Court scrutiny and then about the latter’s decision concerning the non-applicability of the annulled provision in the applicant’s case. The Court is therefore satisfied that the application cannot be rejected for non-exhaustion of domestic remedies. 29. Furthermore, the Court observes the parties’ diverging views on the question of applicability of Article 6 § 1 in the case.", "It notes that since the dispute at issue related to the applicant’s dismissal from her employment, it concerned a “civil” right (see e.g. Cudak v. Lithuania [GC], no. 15869/02, §§ 44 to 47, ECHR–2010). It further notes that it has not been disputed by the parties that under Hungarian law the applicant as a former government official had the formal right to challenge her dismissal in court. This consideration alone allows the Court to find that Article 6 § 1 is applicable in the circumstances (see Vilho Eskelinen and Others v. Finland [GC], no.", "63235/00, §§ 62-63, ECHR 2007‑II); and the extent to which the applicant’s reputational or pecuniary interests were prejudiced by the absence of reasons are immaterial in this context. The application thus cannot be rejected as incompatible ratione materiae with the provisions of the Convention or as manifestly ill-founded, within the meaning of Article 35 § 3 (a). The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 30. The Government have not disputed the applicant’s allegations on the merits. 31. The Court recalls 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 Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 44, Series A no. 43).", "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 Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). 32. However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court.", "It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Osman v. the United Kingdom, 28 October 1998, § 147, Reports of Judgments and Decisions 1998‑VIII). 33. The Court would add that Article 6 § 1 of the Convention leaves to the Contracting States the choice of the means of ensuring that the right of access to a court is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that the maintaining in the domestic law of the right to bring a labour-law claim does not in itself ensure the effectiveness of the right to access to a court, if that possibility is devoid of any substance and thus of any prospect of success (see, mutatis mutandis, Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no.", "275). 34. In the particular case, the Court observes that the applicant as a former government official dismissed from service was in principle entitled to challenge that dismissal in court. However, since the employer was under no obligation to give any reasons for that dismissal, the Court takes the view that it is inconceivable for the applicant to have brought a meaningful action, for want of any known position of the respondent employer. For the Court, this legal constellation amounts to depriving the impugned right of action of all substance.", "The Court also notes that the Constitutional Court, whose approach was partly based on the Court’s relevant case-law, annulled the underlying domestic provision for, among others, similar considerations (see paragraph 16 above), largely in line with the spirit of the European Union Charter of Fundamental Rights (see paragraph 18 above) and the revised European Social Charter (see paragraph 19 above). 35. The foregoing considerations are sufficient to enable the Court to conclude that, in disputes concerning civil rights such as the present one, such a limited review cannot be considered to be an effective judicial review under Article 6 § 1. There has therefore been a violation of the applicant’s right of access to a court (see Obermeier v. Austria, 28 June 1990, § 70, Series A no. 179; and, a contrario, A. Menarini Diagnostics S.R.L.", "v. Italy, no. 43509/08, §§ 57 to 67, 27 September 2011). There has accordingly been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed 19,590 euros (EUR) in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage. 38. The Government contested these claims.", "39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered some non-pecuniary damage and awards her EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 40.", "The applicant also claimed EUR 5,000 for the costs and expenses incurred before the Court. This sum corresponds to 36 hours of legal work billable by her lawyer at an hourly rate of EUR 135 including VAT as well as EUR 140 of miscellaneous expenses. 41. The Government contested these claims. 42.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. C. Default interest 43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Hungarian forints at the rate applicable at the date of settlement: (i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stanley NaismithFrançoise TulkensRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pinto De Albuquerque is annexed to this judgment. F.T.S.H.N. CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE I agree with the finding that there has been a violation of Article 6 of the European Convention on Human Rights (the Convention). Nonetheless, I feel bound to append this concurring opinion in order to explain, and expand on, the reasons why I consider that the respondent State did not comply with the Convention. In view of the facts of the case and the applicable legal framework, the fundamental question that must be formulated is the following: is it legitimate to interpret Article 6 of the Convention in the light of Article 24 of the revised European Social Charter in a human rights case against a State that is not bound by the latter provision?", "In other words, can the Court, in interpreting Article 6 of the Convention, apply the standard laid down in Article 4 of ILO Convention No. 158 to a country which has not ratified this latter Convention? These questions require a thorough answer which must take into consideration the protection of social rights by the Convention and the contemporary interconnection between international human-rights law and international labour law[2]. Termination of employment in international labour law ILO Convention No. 158 and Recommendation No.", "166 concerning termination of employment provide for the following basic guarantees: valid reason for dismissal and the enunciation of non-valid reasons for dismissal, an opportunity for workers to be aware of and respond to allegations, the right of appeal, the sharing of the burden of proof and the right to compensation. Pursuant to Articles 4-6 of ILO Convention No. 158, a worker’s employment is not to be terminated unless there is a valid reason for such termination, connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. The following, inter alia, do not constitute valid reasons for termination: (a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; (b) seeking office as, or acting or having acted in the capacity of, a workers’ representative; (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; (d) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; (e) absence from work during maternity leave. Temporary absence from work because of illness or injury does not constitute a valid reason for termination.", "Thirty-five countries have ratified this Convention worldwide, but Hungary is not one of them. The ILO Committee of Experts on the Application of Conventions and Recommendations has stated that the need to base termination of employment on a valid reason is the cornerstone of the above-mentioned ILO Convention’s provisions, since it “removes the possibility for the employer to unilaterally end an employment relationship of indeterminate duration by means of a period of notice or compensation in lieu thereof”[3]. In the light of Article 4 of the ILO Convention, termination of employment “does not merely require the employer to provide justification for the dismissal of a worker, but requires, above all, that, in accordance with the ‘fundamental principle of justification’, a worker’s employment is not to be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking”[4]. The same Committee of Experts has acknowledged, in broad terms, that: “Because the [ILO] Convention supports productive and sustainable enterprises, it recognizes that economic downturns can constitute a valid reason for termination of employment. The Committee stresses that social dialogue is the core procedural response to collective dismissals - consultations with workers or their representatives to search for means to avoid or minimize the social and economic impact of terminations of employment for workers.”[5] Thus, the scope of Article 4 is arguably broad enough to accommodate reasons related to non-disciplinary conduct by a worker and to an enterprise’s strategic needs.", "Articles 8-10 of the ILO Convention deal with the appeal procedure. These provisions do not merely provide workers with a right to appeal, but they also ensure that workers do not have to bear alone the burden of proving that the termination was not justified. Moreover, it is stipulated that the adjudicatory body, in addition to having power to declare a dismissal invalid, must have competence to award the full spectrum of remedies, including reinstatement, adequate compensation or “such other relief as may be deemed appropriate”. Article 2, paragraph 2, of the ILO Convention sets out the exclusions which may be made in view of the nature of the contract of employment. It provides that a “Member may exclude the following categories of employed persons from all or some of the provisions of this Convention: (a) workers engaged under a contract of employment for a specified period of time or a specified task; (b) workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration; (c) workers engaged on a casual basis for a short period[6].” Termination of employment in international human-rights law In its General Comment No.", "18 on the Right to Work, the UN Committee on Economic, Social and Cultural Rights noted that violations of the right to work can occur through acts of omissions, for example when States parties do not regulate the activities of individuals or groups to prevent them from impeding the right of others to work. Thus, the Committee on Economic, Social and Cultural Rights considered that “violations of the obligations to protect follow from the failure of States parties to take all necessary measures to safeguard persons within their jurisdictions from infringements of the right to work by third parties. They include omissions such as ... the failure to protect workers against unlawful dismissal”[7]. Hungary is bound by Article 6 of the International Covenant on Economic, Social and Cultural Rights and in particular by the prohibition of unlawful dismissal derived from it. Dismissal which is not grounded on valid reasons that are specifically provided for by law is unquestionably unlawful.", "Termination of employment in European Human-Rights Law Termination of employment concerns a civil right under the protection of Article 6 of the Convention[8]. In Vilho Eskelinen and Others, the Court extended this protection, in principle, to all civil servants, the exception being those cases where national law does not confer a right of access to the court to a category of civil servants and such exclusion of the Convention protection is justified[9]. While the Court gave a list of non-exhaustive examples of “ordinary labour disputes” to which Article 6 should in principle apply, it did not exclude other labour-related proceedings from applicability of that article. Later, the Court held that the approach developed in the case of Vilho Eskelinen and Others also applied to access to a public office[10] and termination of public office[11], assessing issues such as the unfairness of proceedings concerning removal from office[12], or the excessive overall length of the dismissal proceedings[13]. This broad protection afforded to employees by Article 6 was complemented by other Articles.", "Termination of employment has also been assessed from the perspective of other Convention rights and freedoms, such as the freedom to hold religious beliefs[14] and freedom of expression[15]. Pursuant to Article 24 of the Revised European Social Charter, all workers have the right not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; the Parties undertake to ensure the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief and the right to appeal to an impartial body when they consider that their employment has been terminated without a valid reason. This provision has been accepted by 24 Member States of the Council of Europe, but not by Hungary. Article 30 of the Charter of Fundamental Rights of the European Union reinforced this consensus, by drawing on the above-mentioned provision, as the respective “Explanations” show[16]. Taking into account the significant European consensus on protection in cases of termination of employment, there is a positive obligation for the Contracting Parties to the Convention to implement the principle of justification for termination of employment, i.e.", "a legal system of justified termination of employment. The Court has already established that a social right can legitimately be derived from a Convention provision, even when such a right is foreseen in the European Social Charter and the Contracting Party is not bound by the relevant provision of the Charter[17]. This jurisprudence is also valid in the case of the right of all workers not to have their employment terminated without valid reasons for such termination and the concomitant right to appeal the decision of termination of employment to an impartial body. In European human-rights law, the right to protection in cases of termination of employment applies to all categories of employees, including civil servants and public officials. The Contracting Parties may, within their margin of appreciation, consider that workers engaged under a contract of employment for a specified period of time or a specified task, workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration, and workers engaged on a casual basis for a short period do not benefit from this guarantee.", "In any event, no termination of employment is acceptable under European human-rights law based on discriminatory reasons, such as union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours; seeking office as, or acting or having acted in the capacity of, a workers’ representative; the filing of a complaint or participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; absence from work during maternity, paternity or parental leave[18]. In sum, the right to protection in the event of termination of employment has a minimum content in European human rights law, consisting of four core requirements: a formal written notice of termination of employment given to the employee, a pre-termination opportunity to respond given to the employee, a valid reason for termination, and an appeal to an independent body. The right of appeal against any termination of employment to an independent body requires that this body has the powers to verify the factual and legal aspects of the appealed decision and to remedy it, if it is found illegal[19]. The application of the European standard to the present case Given that Article 24 of the Revised European Social Charter and Article 30 of the European Union Charter of Fundamental Rights are invoked by the Chamber to shed light on its interpretation of Article 6 of the Convention, and both those Articles are inspired by Article 4 of ILO Convention No. 158 on termination of employment, the question of the legitimacy of this interpretation may be raised, bearing in mind that Hungary is not a party to ILO Convention No.", "158, nor has it accepted Article 24 of the Revised European Social Charter. In view of the aforementioned European standard based on the principle of justification of termination of employment, the answer must be in the affirmative. This answer is strengthened by the circumstance that Hungary is bound by Article 30 of the EU Charter of Fundamental Rights, which enshrines the said principle, and Article 6 of the International Covenant on Economic, Social and Cultural Rights, which includes such a principle by virtue to General Comment No. 18 on the Right to Work. It is not acceptable for one and the same State to advocate a double standard on termination of employment in respect of different international organisations, claiming to be held to a lower standard vis-à-vis the Council of Europe when it is already subject to a more demanding standard vis-à-vis the United Nations and the European Union.", "The respondent Government themselves demonstrated that the applicant enjoyed a limited right of access to a court under national law “in cases of discriminatory dismissal or in breach of the special protection afforded by law on objective grounds (see Article 90 of the Labour Code)”. This is sufficient to consider Article 6 of the Convention applicable to the instant case, making redundant and even contradictory the Government’s additional allegation that the exclusion of Article 6 rights for the civil servant was justified “because of the public-law nature of the dispute and because the subject matter of the dispute calls into question the special bond between the State and its employee” (page 9 of the Government’s observations). Given that the first Vilho Eskelinen criterion is satisfied, Article 6 is fully applicable to the case and the applicant benefits from its protection, since she was a civil servant working in the environmental inspectorate, not engaged under a contract of employment for a specified period of time or a specified task, nor serving a period of probation or a qualifying period of employment, nor engaged on a casual basis for a short period. Thus, the termination of her employment breached her rights to know the reasons for her dismissal and to have her dismissal fully assessed by an independent body, as provided for by Article 6 of the Convention. [1]This provision has not been accepted by Hungary.", "[2] I have expressed my thoughts on these two important topics in a partly concurring and partly dissenting opinion joined to the Grand Chamber case Konstantin Markin v. Russia [GC], no. 30078/06, ECHR 2012 (extracts). [3] CEACR, General Survey – Protection against unjustified dismissal (1995), para. 76. [4] CEACR direct request – Luxembourg (2007).", "See report of the ILC at its 67th Session in which it was stated “Thus, today the justification principle has become the centrepiece of the law governing termination of employment by the employer…”, ILC, 67th Session, 1981, Report VIII(1), p. 7. [5] CEACR - General observation concerning Convention No. 158 (CEACR, 79th Session, November-December 2008). [6] The Tripartite Committee established to consider a representation brought under Article 24 of the ILO Constitution by the Confederation Générale du Travail-Force Ouvrière with regard to the French Ordinance no. 2005-893, concluded that two years was not a reasonable period of time for the purposes of Article 2, paragraph 2 of ILO Convention no.", "158 (Governing Body doc. GB.300/20/6), thus contradicting the decision of the Conseil d’Etat of 19 October 2005. The Committee also found that the Ordinance departed from the basic requirements of Article 4 of the relevant ILO Convention, insofar as workers whose employment was terminated for reasons of performance or conduct did not need to be provided an opportunity, prior to or at the time of termination, to defend themselves against the allegations made, as required by Article 7 of the [ILO] Convention, and the requirement under Article 4, read with Article 7, of the [ILO] Convention that the employee must be given a valid reason, prior to or at the time of termination, at least in cases relating to conduct or performance, needed similarly to be complied with only where the termination is of a disciplinary nature. Subsequently, the French legislation on “contracts for new employment” was changed. The French Court of Cassation, in its judgment of 1 July 2008, confirmed the Committee’s opinion.", "[7] General Comment No. 18 on the Right to Work, UN Committee on Economic, Social and Cultural Rights (E/C.12/GC/18), adopted on 24 November 2005, at paragraph 35. See also paragraph 11 of the general comment in which explicit reference is made to Article 4 of Convention No. 158. [8] The Court’s case-law on this topic started with disciplinary proceedings in which the right to continue to practise a profession was at stake, giving rise to disputes over civil rights within the meaning of Article 6 (see, among other authorities, the following judgments: König v. Germany, 28 June 1978, Series A no.", "27, and Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, Series A no. 43). [9] Vilho Eskelinen and Others v. Finland (GC), no. 63235/00, §§ 62-63, ECHR 2007-II. [10] Majski v. Croatia (No.", "2), no.16924/08, 19 July 2011, Kübler v. Germany, no. 32715/06, 13 January 2011, and, implicitly, Josephides v. Cyprus, no.33761/02, 6 December 2007, and Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010. [11] Sabeh el Leil v. France, (GC) no. 34869/05, 29 June 2011, and Cudak v. Lithuania (GC), no.", "15869/02, 23 March 2010. [12] Hrdalo v. Croatia, no. 23272/07, 27 September 2011, and Lesjak v. Croatia, no. 25904/06, 18 February 2010. [13] Mishgjoni v. Albania, no.18381/05, 7 December 2010, and Golenja v. Slovenia, no.", "76378/01, 30 March 2006. [14] Ivanova v. Bulgaria, no.52435/99, 12 April 2007, on the applicant’s dismissal from her job as swimming-pool manager at the River Shipbuilding and Navigation School because of her religious beliefs. [15] Heinisch v. Germany, no. 28274/08, 21 October 2010, on the applicant’s dismissal, without notice, from her job as a geriatric nurse for a limited liability company specialising in health care of the elderly which is majority-owned by the Land of Berlin, on the ground that she had lodged a criminal complaint against her employer, and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement. [16] See Explanations Relating to the Charter of Fundamental Rights (2007/C 303/02).", "See also Directive 2001/23/EC on the safeguarding of employees’ rights in the event of transfers of undertakings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC. [17] Demir and Baykara v. Turkey (GC), no. 34503/97, §§ 153-154, ECHR 2008. [18] Specifically referring to Article 5-c of ILO Convention No. 158, see Heinisch, quoted above, § 39, which found that the applicant’s dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention.", "[19] This right to protection of workers is an obligation of result which the state is bound to achieve within a reasonable period of time through adequate legislative, judicial and administrative instruments, including the approval of a suitable legislative framework, an efficient judicial structure and supervisory administrative machinery. This right may be restricted or even annulled in exceptional circumstances, as long as retrogressive measures pursue general welfare aims and are implemented progressively and proportionately." ]

[ "FOURTH SECTION CASE OF CZERWIŃSKI v. POLAND (Application no. 10384/02) JUDGMENT STRASBOURG 17 October 2006 FINAL 17/01/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Czerwiński v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrK. Traja,MrS. Pavlovschi,MrL. Garlicki,MsL. Mijović, judges, and Mr T.L.", "Early, Section Registrar, Having deliberated in private on 26 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10384/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Kordian Czerwiński (“the applicant”), on 2 August 2001. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.", "3. On 24 August 2005 the President of the Fourth Section decided to communicate the applicant’s complaint concerning the length of proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1937 and lives in Brześć Kujawski, Poland. 5. On 29 January 1985 the applicant initiated before the Włocławek District Court (Sąd Rejonowy) civil proceeding concerning the division of his late parents’ estate. The estate consisted of two plots of land, 16 hectares in area, and one house. 6.", "Subsequently, the court held hearings and ordered expert opinions. 7. In 1993 the court held hearings in June and November. Subsequently, the court ordered expert opinions and in September 1994 it stayed the proceedings. Upon the applicant’s appeal the proceedings were resumed on 5 June 1995.", "The next hearing was held in July 1996 but subsequent hearings were held at more regular intervals. 8. Between September 1997 and March 1999 no hearings were held. During this period, the court ordered an expert opinion which was submitted in April 1998. A hearing scheduled for January 1999 was cancelled and took place in March 1999.", "Subsequently, the court ordered another expert opinion to be prepared and held the next hearing on 25 April 2000. 9. At least on two occasions, in 1996 and 2000, the presiding judge changed and the proceedings had to start from the beginning. 10. On 4 May 2000 the Włocławek District Court gave judgment.", "The court divided up the estate in question. 11. A party to the proceedings lodged an appeal against the judgment. 12. On 13 February 2001 the Włocławek Regional Court (Sąd Okręgowy) dismissed the appeal.", "II. RELEVANT DOMESTIC LAW 13. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1.", "The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” 14. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it.", "However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.” 15. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 34‑46, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no.", "15212/03, §§12‑23, ECHR 2005‑.... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 17. The Government contested that argument.", "18. The Court notes that the period to be taken into consideration began not on 29 January 1985 when the applicant initiated the proceedings, but on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 13 February 2001. It thus lasted 7 years and almost 10 months for two levels of jurisdiction.", "A. Admissibility 19. The Court firstly notes that the Government raised a preliminary objection that the applicant had not exhausted remedies available under Polish law. They maintained that from 17 September 2004, when the 2004 Act had come into force, the applicant had a possibility of lodging a claim for compensation for damage suffered due to the excessive length of proceedings with the Polish civil courts under Article 417 of the Civil Code read together with section 16 of the 2004 Act. 20. However, the Court has already found that the civil action relied on cannot be regarded with a sufficient degree of certainty as an effective remedy in cases where the three-year limitation period for the State’s liability in tort expired before the entry into force of the 2004 Act on 17 September 2004 (see Ratajczyk v. Poland; (dec), 11215/02, 31 May 2005, Barszcz v. Poland, no 71152/01, § 45, 30 May 2006).", "The present case belongs to this group of applications as the proceedings at issue ended on 13 February 2001, which is more than three years before the 2004 Act had come into force. It follows that the Government’s plea of inadmissibility on the ground of non‑exhaustion of domestic remedies must be dismissed. 21. 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 22. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "23. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 24. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 26.", "The applicant claimed 50,000 Polish zlotys (PLN) in respect of non‑pecuniary damage. 27. The Government contested the claim. 28. The Court awards the applicant 4,400 euros (EUR) in respect of non‑pecuniary damage.", "B. Costs and expenses 29. The applicant also claimed PLN 15,000 for costs and expenses incurred before the domestic courts. 30. The Government contested the claim.", "31. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings. C. Default interest 32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,400 (four thousand four hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction.]", "Done in English, and notified in writing on 17 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T.L. EarlyNicolas BratzaRegistrarPresident" ]

[ "THIRD SECTION CASE OF ANNA POPOVA v. RUSSIA (Application no. 59391/12) JUDGMENT STRASBOURG 4 October 2016 FINAL 04/01/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Anna Popova v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Helena Jäderblom,Helen Keller,Dmitry Dedov,Branko Lubarda,Alena Poláčková,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 13 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "59391/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Anna Stanislavovna Popova on 12 August 2012. 2. The applicant, who had been granted legal aid, was represented by Ms M. Samorodkina, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3.", "The applicant alleged, in particular, that she had been deprived of her flat in contravention of Article 1 of Protocol No. 1 to the Convention and that her eviction amounted to a violation of Article 8 of the Convention. 4. On 13 March 2014 the President of the First Section decided to grant the application priority under Rule 41 of the Rules of Court and to give the Government notice of the applicant’s complaints under Article 1 of Protocol No. 1 to the Convention and Article 8 of the Convention.", "The remainder of the application was declared inadmissible. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964 and lives in Chelyabinsk. A.", "Background information concerning the flat later purchased by the applicant 6. In 1971 a local factory, which was the owner of a block of flats, assigned the flat at 125-56 Ulitsa Kommuny, Chelyabinsk, to P. under a social housing agreement. In 1992 the title to the building was transferred to Chelyabinsk Municipality. P. resided in the flat as a tenant until his death on 3 December 2010. 7.", "Following P.’s death, Chelyabinsk Municipality started the process for registering the flat as vacant in order to assign it to another person eligible for social housing. However, it turned out that, according to the documents, the flat was no longer municipal property and that it belonged to L. The federal registration service sent the relevant data to the head of the municipality’s administration on 16 February 2011. The head of the administration asked the regional prosecutor to look into the situation with the flat. 8. The prosecutor established that the flat had been subject to a number of transactions.", "According to the relevant documents, on 9 November 1992 the factory had signed a privatisation agreement to transfer the flat to Kh. On 3 December 1992 the transaction was registered by the registration service. On 25 January 2011 Kh. sold the flat to L., who sold it on 21 April 2011 to Ya. Those transactions were also registered by the registration service.", "9. A police investigator questioned Kh., who denied having anything to do with the flat. As regards his passport details indicated in the privatisation agreement, he explained that in 2009 and 2010 he had lost his passport twice and that he had never met P. or L. The police further established that L., who was serving in the army at the time, had also lost his passport in 2009. 10. On 31 March 2011 the prosecutor responded to the head of the administration advising him as follows: “It appears that the persons who were parties to the transactions with the flat committed a crime in this respect.", "Accordingly the materials have been forwarded to the [police] for further inquiry ... . [The police] will inform you of the results of the inquiry ... . Furthermore, in order to prevent further transactions with the flat, I have asked the Chief State Registrar to refuse state registration of any future transactions with the flat.” 11. On an unspecified date the police opened a criminal investigation into the transactions involving the flat. 12.", "On 22 June 2011 Ya. sold the flat to the applicant. B. Municipality’s claims in respect of the flat 13. On 30 June 2011, acting on behalf of the municipality, the prosecutor brought an action against Kh., L. and Ya. to seek repossession of the flat and the annulment of all transactions executed in respect of it.", "The prosecutor argued that Kh., had never resided in the flat and that the flat had never been transferred to him from the municipality under a privatisation scheme. The prosecutor asked the court to invalidate the privatisation agreement of 9 November 1992 and subsequent transactions in respect of the flat as having no basis in law. The Tsentralniy District Court of Chelyabinsk fixed a hearing for 1 September 2011. 14. On 6 July 2011 the registration service issued a certificate confirming the purchase of the flat by the applicant and her title to it.", "15. On 16 September 2011 the District Court granted the applicant’s request and allowed her to take part in the proceedings initiated by the prosecutor. She claimed that she had bought the flat in good faith and that the municipality could not recover it from her. 16. On 5 October 2011 the District Court issued an injunction against the registration of any transactions involving the flat.", "C. Annulment of the applicant’s title to the flat and eviction proceedings 17. On 23 December 2011 the Tsentralniy District Court of Chelyabinsk granted the prosecutor’s claims brought on behalf of the municipality. The applicant’s title to the flat was annulled and transferred to the municipality. The court also ordered the applicant’s eviction. Lastly, it ruled that Ya.", "should return to the applicant the sum she had paid for the flat. The court reasoned as follows: “Pursuant to Article 302 of the Civil Code of the Russian Federation, if a property has been purchased from a person who had no right to sell it, and the purchaser is unaware and could not have been aware [of that fact] (the bona fide purchaser), the owner shall have the right to reclaim that property from the purchaser, if the said property was lost by the owner or by the person into whose possession the owner has conveyed the property, or if it was stolen from either of them, or if it left their possession against their will in another way. It has been established in the course of the proceedings that the flat in question left the municipality’s possession against the latter’s will. Accordingly, the flat ... should be recovered from [the applicant] and transferred to the municipality.” 18. On 5 March 2012 the Chelyabinsk Regional Court upheld the judgment of 23 December 2011 on appeal.", "The court also noted that the applicant could not be recognised as a bona fide purchaser given that she had known that the flat had been resold three times within five months. 19. On 13 December 2013 Ya. died. The part of the judgment of 23 December 2011 concerning the monetary award in the applicant’s favour remains unenforced.", "20. According to the Government, the applicant has not been evicted and continues to reside in the flat. D. The applicant’s action for damages against the State 21. On an unspecified date the applicant brought an action against the State, alleging that the local authorities’ inaction had resulted in her buying a flat from a person who had no right to sell it to her. 22.", "On 19 December 2013 the Tverskoy District Court of Moscow dismissed the applicant’s claims. 23. On 16 June 2014 the Moscow City Court upheld the judgment of 19 December 2013 on appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 24.", "For a summary of the relevant domestic provisions and practice, see Gladysheva v. Russia (no. 7097/10, §§ 35-37, 6 December 2011). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 25.", "The applicant complained that she had been deprived of her possessions in violation of Article 1 of Protocol No. 1 to the Convention, which provides, in so far as relevant, as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 26. 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. Parties’ submissions (a) The Government 27.", "The Government argued that the interference with the applicant’s property rights had been “in accordance with the law”. In their view, the flat had left the municipality’s possession as a result of fraudulent actions of unidentified persons who had forged a privatisation agreement. In the Government’s opinion, the present case should be distinguished from Gladysheva (cited above), where the authorities had had ample opportunity to verify the authenticity of the documents when entering into social housing and privatisation agreements with a private party. In the case under consideration, the privatisation agreement which authorised the transfer of the flat into the ownership of a private party had been forged. The municipality had not had any intent to dispose of its property.", "The existence of third party rights in respect of the flat only came to the municipality’s attention after the death of the tenant who had resided in the flat under a social housing agreement. 28. The Government also submitted that the interference with the applicant’s property rights had pursued the legitimate aim of protecting the interests of others, notably people in need of housing. The Government further noted that the repossession of the flat by the municipality had not placed an excessive burden on the applicant. She had not been evicted and continued to reside in the flat.", "In addition, the applicant had owned other real estate which she had sold once the prosecutor had brought an action against her in respect of the flat. Lastly, the Government submitted that the applicant had been put on the waiting list of people in need of social housing. She had also been successful in the action against the person who had sold the flat to her. (b) The applicant 29. The applicant argued that the interference with her property rights had not been in accordance with the applicable laws.", "She had bought the flat in good faith and, as a matter of law, the municipality was estopped from reclaiming the flat. She further submitted that the loss of her property had amounted to a disproportionate interference with her rights as set out in Article 1 of Protocol No. 1 to the Convention. The authorities had placed an excessive burden on her and had failed to ensure a fair balance between their decision to reclaim the property from the applicant and her interests. The sequence of fraudulent transactions with the flat had resulted from the authorities’ omissions and lack of diligence.", "When registering the sales of the flat, the registration service had failed to verify the authenticity of the documents involved. Furthermore, the authorities had become aware of the fraudulent privatisation of the flat when the flat had still been registered as Kh.’s property. However, they had done nothing to secure the recovery of the flat and had brought an action seeking repossession of the flat belatedly. As a result, the flat had been resold three times. Each transaction had been registered by the federal registration service.", "Lastly, the applicant pointed out that she had not received any compensation for the loss of title to the flat. Her action for damages against the authorities had been to no avail. Ya. had died and the judgment in her favour remained unenforced. 2.", "The Court’s assessment (a) General principles 30. The general principles concerning protection of property are well established in the Court’s case-law (see Gladysheva, cited above, §§ 64-68). (b) Application of those principles to the present case 31. The Court observes that it is common ground between the parties that the flat constituted the applicant’s possession and that the revocation of her title to it amounted to an interference with her rights as set out in Article 1 of Protocol No. 1 to the Convention.", "The Court sees no reason to hold otherwise. 32. Furthermore, the Court does not find it necessary in the circumstances of the case to decide on the lawfulness of the revocation of the applicant’s title to the flat or the legitimate aim of the impugned measure. To the extent that it is relevant to an assessment of the proportionality of the interference, those issues will be addressed in paragraphs 33-39 below (compare with Gladysheva, cited above, §§ 72-76, and Stolyarova v. Russia, no. 15711/13, §§ 45-46, 29 January 2015).", "33. As to the issue of whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the applicant’s property rights, the Court answers that question in the negative. In its view, the repossession of the flat by the municipality constituted a disproportionate burden on the applicant. 34. In that connection, the Court observes that, as pointed out by the Government, the municipality lost its title to the flat as a result of a fraud when unidentified persons forged a privatisation agreement.", "It also accepts that there was no possibility for the municipality to become privy to the information concerning the fraudulent transfer of the title to the flat at any time before the flat was vacated following the tenant’s death in 2010. The Court, however, considers that once the fraud was discovered the authorities failed to exercise diligence or to act in good time in order to secure repossession of the flat. 35. According to the information submitted by the Government, on 16 February 2011 the municipality obtained information that the flat was no longer municipal property. Admittedly, the authorities needed a certain amount of time to conduct an inquiry into the matter and to establish the circumstances.", "However by 31 March 2011 the prosecutor had already informed the state registrar of the situation with the flat and asked the latter to refuse registration of any future transactions in respect of the flat. The Government did not furnish any explanation, however, as to why the flat changed hands twice after the prosecutor’s alert. The injunction against any transactions with the flat was only imposed in October 2011, after the applicant had purchased it. 36. The Court further rejects the Government’s argument that the applicant was herself responsible for the situation because she had bought a flat which had been the subject of two prior transactions within a short period of time.", "The registration service found those transactions to be in compliance with applicable laws and approved them. Neither the domestic courts nor the Government provided any explanation as to why in such circumstances the applicant should have had doubts as to the legitimacy of those transactions. 37. Lastly, the Court notes that the applicant has been deprived of ownership without any compensation or the provision of replacement housing from the State. The judgment in her favour ordering Ya.", "to return her monies remains unenforced to this date. Nor was she successful in suing the State for the omissions of the registration service. 38. The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant was deprived of her title to the flat imposed an individual and excessive burden on her and that the authorities have failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to peaceful enjoyment of her possessions on the other. 39.", "There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 40. The applicant complained that her eviction had amounted to a violation of her right to respect for her home.", "She relied on Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 41. The Government contested that argument.", "42. The applicant maintained her complaint. 43. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the findings relating to Article 1 of Protocol No.", "1 to the Convention (see paragraphs 30-39 above) and given that the applicant remains in the flat (see paragraph 20 above), the Court considers that it is not necessary to examine the same facts from the standpoint of Article 8 of the Convention (see, mutatis mutandis, Akhverdiyev v. Azerbaijan, no. 76254/11, § 101-05, 29 January 2015). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.", "Damage 45. The applicant claimed 1,870,000 roubles (RUB) in respect of pecuniary damage and 48,500 euros (EUR) in respect of non-pecuniary damage. 46. The Government considered the applicant’s claims excessive and unreasonable. 47.", "The Court takes into account that in the present case it has found a violation of the applicant’s rights guaranteed by Article 1 of Protocol No. 1 to the Convention. It considers that there is a clear link between the violation found and the damage caused to the applicant. 48. The Court reiterates that, normally, the priority under Article 41 of the Convention is restitutio in integrum, as the respondent State is expected to make all feasible reparation for the consequences of the violation in such a manner as to restore as far as possible the situation existing before the breach (see, among other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no.", "85; Tchitchinadze v. Georgia, no. 18156/05, § 69, 27 May 2010; Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, § 35, 15 June 2010, § 198; and Stoycheva v. Bulgaria, no. 43590/04, 19 July 2011). Consequently, having due regard to its findings in the instant case, the Court considers that the most appropriate form of redress would be to restore the applicant’s title to the flat and to annul the eviction order.", "Thus, the applicant would be put as far as possible in a situation equivalent to the one in which she would have been had there not been a breach of Article 1 of Protocol No. 1 to the Convention (compare with Gladysheva, cited above, § 106). 49. In addition, the Court has no doubt that the applicant has suffered distress and frustration on account of the loss of her property. Making its assessment on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "B. Costs and expenses 50. The applicant also claimed RUB 576,204 and EUR 2,000 for the costs and expenses incurred before and before the Court. 51. The Government considered that the costs and expenses incurred by the applicant had not been necessary, nor had she shown that she had actually incurred all of them.", "In particular, the applicant had not proved that she had paid EUR 2,000 to Ms Samorodkina, nor had she provided an agreement between her and Mr Puzanov, who lodged the application on her behalf. 52. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that EUR 850 has already been paid to the applicant by way of legal aid. Having regard to the documents submitted by the applicant in support of her claims, and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads.", "C. Default interest 53. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No.", "1 to the Convention; 3. Holds that there is no need to examine a complaint under Article 8 of the Convention; 4. Holds (a) that the respondent State shall ensure, by appropriate means, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, restitution of the applicant’s title to the flat and the annulment of her eviction order; (b) that the respondent State is to pay the applicant, within the same three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (c) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "FIRST SECTION CASE OF DZHAVADOV v. RUSSIA (Application no. 30160/04) JUDGMENT STRASBOURG 27 September 2007 FINAL 27/12/2007 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision In the case of Dzhavadov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: MrC.L. Rozakis, President,MrL. Loucaides,MrsN.", "Vajić,MrA. Kovler,MrsE. Steiner,MrK. Hajiyev,MrD. Spielmann and Mr S. Nielsen, Section Registrar, Having deliberated in private on 6 September 2007, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 30160/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Valeriy Mamedovich Dzhavadov (“the applicant”), on 21 June 2004. 2. The applicant was represented by Ms M. Ledovskikh, a lawyer practising in Voronezh. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.", "3. The applicant alleged that the Russian authorities had refused to register his newspaper under the title Letters to the President, thereby preventing him from publishing it. 4. On 1 April 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.", "5. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6.", "The applicant was born in 1959 and lives in Belgorod. 7. On 23 October 2002 the applicant filed an application with the Ministry for the Press, Television and Radio Broadcasting and Mass Communications (hereafter “the Ministry”), for registration of a newspaper entitled Letters to the President (Письма Президенту). 8. By letter of 23 January 2003, the deputy head of the Ministry's Department for Registration and Licensing informed the applicant that, judging by its title, the newspaper could be perceived as an official bulletin published by a competent State authority.", "As that was likely to mislead potential readers, the applicant was advised to “obtain the approval of the competent authorities”. 9. The applicant replied to the deputy head and to the Minister, insisting that either the newspaper be registered or an official refusal be issued. 10. On 3 July 2003 the applicant challenged the Ministry's failure to act before the Tverskoy District Court of Moscow.", "He claimed that he had satisfied the legal requirement to be the founder of a newspaper and that the Ministry's procrastination was unlawful. 11. On 9 July 2003 the applicant received the Ministry's official refusal to register the newspaper, based on two grounds. First, it was said that the information in the application was “inconsistent with the real state of affairs” (сведения, не соответствующие действительности) because the newspaper purported to cover a broader range of subjects than its title suggested. Second, the Ministry considered that only the Administration of the President of the Russian Federation could consent to the publication of letters to the President or be a founder of a newspaper with such a title.", "12. On 15 July 2003 the applicant amended his claim, seeking to have the Ministry's refusal overturned. 13. On 3 September 2003 the Tverskoy District Court of Moscow upheld the refusal on the following grounds: “... The court considers it possible to agree with the argument [of the Ministry] that the title of a newspaper denotes its specialisation which [in this case] could be perceived by the readership as an official publication founded by a competent State body ... which prepares the President's direct answers to incoming letters from citizens.", "The court considers that the above fact may give rise to incompatibility of the actual specialisation of the publication under the title Letters to the President with the current legislation. In this connection the court concludes that the Ministry's argument as regards the specialisation of the newspaper in question is a sufficient ground to refuse its registration ... under section 13(1)(2) of the Mass Media Act, which does not violate [the applicant's] rights to found a newspaper and to choose its title ...” 14. On 22 December 2003 the Moscow City Court upheld the judgment of the district court, endorsing the above reasoning. The court also held: “...the [first-instance] court rightly concluded that [the applicant] had failed to comply with the time-limit for bringing court proceedings without a valid excuse. Having received on 23 January 2003 the refusal to register his newspaper, he lodged his claim before a court only on 3 July 2003 ...", "The expiry of the three-month time-limit for lodging such claim is an independent reason for rejecting the applicant's claims (Article 256 § 2 of the Code of Civil Procedure).” II. RELEVANT DOMESTIC LAW A. The Mass Media Act (no. 2124-I of 27 December 1991) 15. A newspaper may be founded by an adult who has not been convicted or declared legally incapable (section 7).", "The editor's office may begin functioning upon registration of a newspaper; an application for registration is to be examined within one month of being lodged (section 8). 16. An application for registration must specify, in particular, the title of the newspaper and an approximate list of subjects and/or specialisation (section 10(2) and (7)). 17. Registration may only be refused on the following grounds: (1) the application is lodged by an individual who cannot be a founder; (2) the information in the application is “inconsistent with the real state of affairs”; (3) the title, range of subjects and/or specialisation represent an abuse of the freedom of mass media as defined in section 4; (4) if an existing newspaper with the same title has been registered earlier (section 13).", "18. Section 4 prohibits using the mass media for the commission of criminal offences, the disclosure of State secrets or protected information, for extremist activities, or for the dissemination of pornography or the promotion of violence and cruelty. B. The Code of Civil Procedure 19. An individual may bring a complaint within three months of the date when he or she became aware of a violation of his or her rights or freedoms (Article 256 § 1).", "The court must examine the reasons for any failure to comply with the three-month period and may reject the complaint on that ground (Article 256 § 2). 20. If the complaint is rejected owing to failure to comply with the time-limit for lodging the complaint before a court without a valid reason, the court's reasoning must be limited to the indication of the circumstances confirming the above (Article 198 § 4). THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21.", "The applicant complained that the refusal to register his newspaper under the title Letters to the President had violated his freedom of expression under 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 ...” A. Admissibility 1. Government's objection as to the date of introduction of the application 22. The Government submitted that there was no proof that this application had been introduced on 21 June 2004, the date indicated by the applicant on his application form. They contended that it should be considered as having been lodged on 13 August 2004, which was the date of its receipt by the Court's Registry. Thus, it was introduced more than six months after the date of the final decision in the applicant's case dated 22 December 2003.", "23. The applicant submitted a copy of dispatch and delivery receipts indicating 21 June 2004 as the date when the application form had been sent to the Court. 24. The Court finds on the basis of the documentary evidence produced by the applicant that the date of introduction had indeed been 21 June 2004, as indicated in the application form. As the final domestic decision had been issued on 22 December 2003, the applicant lodged the application within six months of it.", "The Government's objection must therefore be dismissed. 2. Government's objection as to the non-exhaustion of domestic remedies 25. The Government pointed out that the Tverskoy District Court of Moscow decided that the applicant's claims had been submitted out of time. By failing to comply with the statutory time-limit, the applicant had deprived the domestic courts of an opportunity to examine the substance of his claims.", "26. The applicant explained that he had lodged a civil action challenging the Ministry's failure to issue a formal decision on the registration of the newspaper. However, he had amended his claims once the formal refusal had been issued. Therefore, he could not be said to have failed to comply with the statutory time-limit. The substance of his claims was examined in detail by the courts at two instances.", "27. The Court observes that both the District and City Courts took cognisance of the merits of the applicant's claims and rejected them as unfounded. Their reasoning was not confined to the compatibility of the applicant's complaint with the formal requirements (see paragraph 20 above). The Court reiterates that non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of the latter's failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the claim (see Skałka v. Poland (dec.), no. 43425/98, 3 October 2002; Metropolitan Church of Bessarabia and Others v. Moldova (dec.), no.", "45701/99, 7 June 2001, and Edelmayer v. Austria (dec.), no. 33979/96, 21 March 2000). The Court finds that since the domestic courts have examined the substance of the applicant's complaint, he cannot be said to have failed to exhaust domestic remedies. It follows that the application cannot be declared inadmissible for non-exhaustion of domestic remedies. 3.", "The Court's decision on the admissibility of the application 28. The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 1. Submissions by the parties 29. The Government accepted that the refusal to register the applicant's newspaper under the title Letters to the President amounted to an interference with his freedom of expression under Article 10 § 1 of the Convention. However, they contended that such title wrongly suggested that the newspaper was affiliated to the Administration of the President of the Russian Federation, the authority competent to deal with petitions from citizens. In addition to being misleading, the title did not reflect the newspaper's specialisation.", "They argued that the refusal to register the newspaper under such title aimed to protect the reputation or rights of others, namely those of the President and his Administration, and the rights of the population at large. In particular, such a refusal aimed to secure the public's right to receive replies to their petitions from the competent public authority. The applicant should have sought permission to use the reference to the President in the title of the newspaper. The Government conceded that the above matters were not regulated by the Mass Media Act but referred, by analogy, to the legislation on trade marks. They concluded that the applicant was, in any event, free to publish a newspaper under another title.", "30. The applicant contended, first of all, that the refusal to register the newspaper under the suggested title amounted to an interference with his freedom to impart information and ideas. Such interference was not “prescribed by law” since the national law, including the Mass Media Act, did not permit refusal of registration for the reasons referred to by the Government. A newspaper title could not reasonably be defined as “true” or “false”, or be otherwise consistent with “the real state of affairs”. Furthermore, Russian law contained no clear requirement for strict coherence between the title of a newspaper and its specialisation.", "The applicant further argued that, even if it had been lawful, the refusal of registration was not “necessary in a democratic society”. 2. General principles 31. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 41).", "Article 10 protects not only the substance of information and ideas but also the means of their dissemination since any restriction on the means necessarily interferes with the right to receive and impart information (see Öztürk v. Turkey [GC], no. 22479/93, § 49, ECHR 1999‑VI). 32. The exercise of the freedoms enshrined in paragraph 1 of Article 10, including the freedom to impart information, may be subject to certain “formalities” or “conditions” (see Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97, § 40, ECHR 2005‑I).", "Although Article 10 does not in terms prohibit the imposition of prior restraints on publications, the relevant law must provide a clear indication of the circumstances when such restraints are permissible, especially when they are to block publication of a periodical completely (see Gawęda v. Poland, no. 26229/95, § 40, ECHR 2002‑II). The dangers inherent in prior restraints call for the most careful scrutiny (see Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, p. 30, § 60). 3.", "Application of these principles to the instant case 33. The Court notes the parties' agreement that the refusal to register the newspaper under the suggested title constituted an “interference” with the applicant's freedom of expression as protected by Article 10 § 1. Such an interference gives rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 and was “necessary in a democratic society” to achieve such aims. 34. It must first be ascertained whether the interference complained of was “prescribed by law”.", "35. The Court observes that one of the requirements flowing from the expression “prescribed by law” is the foreseeability of the measure concerned. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the person to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among others, Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999‑III; Goussev and Marenk v. Finland, no. 35083/97, § 53, 17 January 2006; and Štefanec v. the Czech Republic, no.", "75615/01, § 44, 18 July 2006). 36. The degree of precision depends, to a considerable extent, on the content of the instrument at issue, the field it is designed to cover, and the number and status of those to whom it is addressed (see Groppera Radio AG and Others v. Switzerland, judgment of 28 March 1990, Series A no. 173, p. 26, § 68). A law which confers a discretion is not, in itself, inconsistent with the “prescribed by law” requirement, provided that the scope of the discretion and manner of its exercise are indicated with sufficient clarity to give adequate protection against arbitrariness (see Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996‑II, pp.", "496-97, § 31). 37. In the present case, the registration of newspapers was governed by the Mass Media Act. The domestic courts cited section 13 of that Act as the legal basis for upholding the refusal to register the applicant's newspaper. That provision requires that the information in the application be consistent with “the real state of affairs”.", "The courts found that the refusal of registration had been justified because the proposed title suggested that the newspaper was affiliated to the Administration of the Russian President, which was not true, and also because the newspaper purported to cover a broader range of subjects than its title suggested. 38. A similar situation has already been examined by the Court in the Gawęda case, in which it held that requiring the title of a magazine to embody truthful information is inappropriate from the standpoint of freedom of the press. The title of a periodical is not a statement as such, since its function is essentially to identify the given periodical on the press market for its actual and prospective readers (see Gawęda, cited above, § 43). 39.", "Furthermore, the Court has stressed that the requirement that the title of a newspaper reflect the “real state of affairs” should be based on a legislative provision which clearly authorised it. In the Gawęda case the Court found a violation of Article 10 of the Convention because the interpretation given by the courts introduced new criteria, which could not be foreseen on the basis of the text specifying situations in which the registration of a title could be refused (ibid.). 40. A similar situation obtains in the present case. The domestic courts inferred from the phrase “the real state of affairs” employed in section 13 of the Mass Media Act a discretion in favour of the registering authority to refuse registration where it considered that the title of a publication did not satisfy the test of truthfulness or conveyed a misleading impression.", "The Court considers that that extensive interpretation was not founded on any legal provision which clearly authorised it and was not reasonably foreseeable for the applicant. Therefore, the manner in which the “formalities” for registration were interpreted and applied to the applicant's exercise of his freedom of expression did not meet the “quality of law” standard under the Convention. In these circumstances, the Court finds that the interference with the applicant's rights was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention. Accordingly, it is not necessary to examine whether the other requirements laid down in paragraph 2 of Article 10 of the Convention have been met. 41.", "There has therefore been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 43.", "The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 44. The Government considered the amount claimed excessive and that the finding of a violation of Article 10 would constitute sufficient just satisfaction in the present case. 45. The Court finds that the applicant suffered non-pecuniary damage, which would not be adequately compensated by the finding of a violation alone.", "However, the amount claimed by the applicant appears to be excessive. Making its assessment on an equitable basis, it awards the applicant EUR 1,500, plus any tax that may be chargeable on that amount. B. Costs and expenses 46. The applicant did not make any claims for the costs and expenses incurred before the domestic courts and the Court.", "Accordingly, the Court does not award anything under this head. C. Default interest 47. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 27 September 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos Rozakis RegistrarPresident" ]

[ "FIRST SECTION CASE OF SERGEY SOLOVYEV v. RUSSIA (Application no. 22152/05) JUDGMENT STRASBOURG 25 September 2012 FINAL 11/02/2013 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sergey Solovyev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Nina Vajić, President,Anatoly Kovler,Peer Lorenzen,Elisabeth Steiner,Khanlar Hajiyev,Linos-Alexandre Sicilianos,Erik Møse, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 4 September 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "22152/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Yuryevich Solovyev (“the applicant”), on 30 May 2005. 2. The applicant was represented by Mr V. Klimashin, a lawyer practising in Volgograd. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.", "The applicant complained, in particular, under Article 5 of the Convention that he had been unlawfully detained. 4. On 29 January 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 3). THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1982 and lives in Volgograd. A. Proceedings concerning the applicant’s detention 6. On 10 March 2003 the applicant was arrested on suspicion of involuntary manslaughter.", "On an unspecified date he retained private counsel, A.B. 7. On 11 March 2003 the Krasnoarmeyskiy District Court of Volgograd (hereinafter “the District Court”) ordered the applicant’s detention on remand with reference to Articles 97-101 and 108 of the Russian Code of Criminal Procedure (hereinafter “the CCP”). 8. On 19 March 2004 the criminal case against the applicant was sent for trial to the District Court, following which that court extended his detention on several occasions.", "9. By a decision of 21 December 2004 the District Court extended the applicant’s detention until 20 March 2005. 10. On an unspecified date in March 2005 the prosecution applied to the District Court seeking a further extension of the applicant’s detention on remand; the related hearing was fixed for 17 March 2005. 11.", "By a decision of 17 March 2005 the District Court adjourned the hearing on the extension of the applicant’s detention because his lawyer, although duly notified about the hearing, had failed to attend, without providing any reasons. The new hearing was scheduled for 22 March 2005. The applicant was present at the hearing of 17 March 2005. 12. At noon on 21 March 2005 the applicant’s lawyer was notified of the new hearing date, time and venue, against his signature.", "13. By a decision of 22 March 2005 the District Court extended the applicant’s detention until 20 June 2005. The decision stated, among other things, that the term of the applicant’s detention authorised by the decision of 21 December 2004 had expired on 20 March 2005. According to the hearing record, the applicant’s lawyer did not attend and had not informed the court of the reasons for his absence. The applicant, when asked by the court whether he objected to the examination of the issue in the absence of his counsel, stated that he had no objections.", "14. On an unspecified date the applicant complained to the Volgograd Regional Court (hereinafter “the Regional Court”) that his detention between 20 and 22 March 2005 had been unlawful because it had not been covered by a court decision. He also complained that on 22 March 2005 the District Court had examined the issue of his detention in the absence of his lawyer. There is no indication that the applicant also complained about the District Court’s alleged failure to appoint legal-aid counsel for him or to adjourn the hearing. 15.", "On 26 April 2005 the Regional Court dismissed the complaint. It held that the applicant’s arguments concerning the gap between the detention orders and the examination of the detention issue in the absence of his lawyer were “insignificant” (“не являются существенными”), and that the District Court had not breached the relevant provisions of the criminal procedure in extending his detention. As regards the lawyer’s absence, the court noted that A.B. had been duly notified of the hearing of 22 March 2005 against his signature and had not requested that it be postponed, and that, accordingly, the District Court had correctly decided to proceed with the examination of the case. B.", "The applicant’s acquittal and the related compensation proceedings 16. On 16 March 2006 the District Court acquitted the applicant of all charges and ordered his release. The judgment stated, among other things, that the applicant had a right to seek compensation for any pecuniary and non-pecuniary damage caused by his criminal prosecution. 17. On an unspecified date in 2007 the applicant brought proceedings seeking compensation for his criminal prosecution and for unlawful detention.", "He claimed, in particular, 736,000 Russian roubles (RUB) in respect of non-pecuniary damage, and RUB 177,355 in respect of pecuniary damage. 18. By a judgment of 6 March 2007 the District Court partly granted the applicant’s claims, awarding him RUB 137,377 in respect of pecuniary damage and RUB 400,000 in respect of non-pecuniary damage, to be recovered from the Federal Treasury. The court’s judgment, in so far as relevant, reads as follows: “... Bearing in mind that [the applicant] was acquitted, that is, found not guilty of the particularly serious crime of which he had been charged ... the court finds that [the applicant] was unlawfully prosecuted and unlawfully held in detention ... and ... sustained, as a result, pecuniary damage because of loss of salary, and non-pecuniary damage on account of mental suffering in the form of continuing stress because of being held in a detention facility, ... a special institution with a strict regime; [and because of] the restriction of his right to freedom of movement and anxiety about his future ... ... Having regard to the fact that [the applicant’s] criminal prosecution resulted in an acquittal, the court considers it obvious and not requiring any additional proof that the plaintiff sustained non-pecuniary damage because, as a result of unlawful acts by State officials, he was deprived of his right to freedom of movement and his right to choose his place of residence was circumscribed.", "In assessing the amount of the monetary compensation, the court takes into account the intensity of [the applicant’s] mental suffering related to [the fact of his] detention, including the unavoidable contact with the prison population, the restrictions connected to the particular regime of the detention facility [and] the length of [his] detention on remand (over 24 months)[, which took place] while [the applicant] was of a young age. At the same time, the court takes account of the fact that the [applicant’s] arrest [and] placement in custody and the extension of [his] detention were carried out in accordance with the law of criminal procedure [в рамках, предусмотренных уголовно-процессуальным законом], there being sufficient grounds to suspect and charge [him] of having committed a particularly serious crime entailing the deprivation of life of the victim; during the criminal proceedings [the applicant’s] defence rights were secured; it has not been established that there were faulty unlawful acts on the part of the investigating authorities, the detention facility or the courts.” 19. On an unspecified date in 2007 the respondent appealed against the judgment of 6 March 2007 to the Regional Court. 20. By a judgment of 24 May 2007 the Regional Court granted the appeal in part.", "In particular, whilst endorsing the trial court’s reasoning, the Regional Court considered that “the requirements of Article 1101 of the Civil Code concerning reasonableness and justice in determining the amount of compensation for non-pecuniary damage”, as well as “the specific circumstances of the case”, called for a reduction of the amount of the award to RUB 100,000. The court upheld the first-instance judgment in the remaining part. 21. On 27 August 2007 the Presidium of the Volgograd Regional Court examined the case by way of supervisory review, set aside the courts’ findings in respect of the award concerning pecuniary damage, and terminated the proceedings in that part. In that regard, the court held that, pursuant to Article 135 of the CCP, claims for compensation for pecuniary damage arising out of an unlawful prosecution fell within the competence of the criminal courts and were to be examined under the rules of criminal procedure.", "22. It appears that the applicant was paid the compensation in respect of non-pecuniary damage without delay. There is no indication that he applied to the criminal courts with a view to obtaining compensation in respect of pecuniary damage, as directed by the Presidium of the Volgograd Regional Court. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "Provisions concerning detention on remand 23. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his detention extended (Article 22). 24. According to the Russian Code of Criminal Procedure (hereinafter “the CCP”), a decision ordering or extending detention on remand in respect of a suspect or an accused is taken by a district or town court on the basis of a reasoned request by a prosecutor, supported by appropriate evidence (Articles 108 §§ 1, 3-6 and 109 § 2). B.", "Right to compensation for unlawful criminal prosecution 1. The CCP 25. Chapter 18 of the Code regulates the so-called “right to rehabilitation” (право на реабилитацию), which includes, among other things, the right for an individual to obtain from the State full compensation for pecuniary and non-pecuniary damage sustained as a result of criminal prosecution, irrespective of any fault of the investigating authorities, prosecutors or courts (Article 133 § 1). 26. The right to compensation arises in the case of acquittal and also a number of other situations where the criminal prosecution is terminated on so-called “rehabilitation” grounds (реабилитирующие основания), that is, for example, where the prosecution has dropped the charges or where criminal proceedings have been terminated owing to a lack of corpus delicti or because the person was not involved in the criminal act (Article 133 § 2).", "However, no right to compensation arises where the prosecution is terminated on “non-rehabilitation” grounds, such as in the case of an amnesty or where the prosecution has become time-barred (Article 133 § 4). 27. Article 133 § 3 specifically provides that any person on whom a measure of restraint has been unlawfully imposed in connection with a criminal prosecution has a right to compensation under the rules of Chapter 18. 28. In a judgment acquitting an individual a court has to mention explicitly that he has the right to “rehabilitation” (Article 134).", "A claim for compensation of pecuniary damage is to be lodged with the same authority which issued the decision to acquit or the decision to terminate the criminal prosecution (Article 135 § 2), whereas any claims for monetary compensation of non-pecuniary damage are to be lodged with civil courts and examined under the relevant provisions of the Code of Civil Procedure (Article 136 § 2). 2. The Civil Code 29. The Civil Code of the Russian Federation provides as follows: Article 1070: Responsibility for damage caused by unlawful acts ofinvestigating authorities, prosecuting authorities and courts “1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... [or] unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies ...” Article 1100: Grounds for compensation for non-pecuniary damage “Compensation for non-pecuniary damage shall be made irrespective of the fault of the person having caused the damage when: ... the damage has been caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, [or] unlawful detention on remand ...” 3.", "Case-law of the Constitutional Court and the Supreme Court of Russia 30. In its ruling (определение) no. 242-O of 21 April 2005 the Constitutional Court held, inter alia, as follows: “ ... Article 133 of the [CCP] ... does not limit an individual’s right to obtain compensation in connection with a criminal prosecution only to situations of rehabilitation of a suspect or an accused ... Accordingly, in providing that pecuniary and non-pecuniary damage sustained by a citizen as a result of, among other things, unlawful ... detention, is to be compensated for irrespective of the fault of the relevant officials, Articles 1070 § 1 and 1100 § 3 of the Civil Code of the Russian Federation do not make the issuing of such decisions conditional upon the existence of a judgment acquitting the citizen ...", "Hence, the legislation in force ... does not exclude that a court can also issue a decision to compensate a citizen for pecuniary and non-pecuniary damage sustained as a result of unlawful prosecution and ... unlawful detention in cases where an investigating authority, a prosecutor or a court did not take a decision on the full rehabilitation [решение о полной реабилитации] of a suspect or an accused...” 31. In its ruling no. 47-O-O of 18 January 2011 the Constitutional Court reiterated that Article 133 of the CCP and the related provisions of the Code of Civil Procedure did not make an award of compensation in respect of pecuniary or non-pecuniary damage conditional upon an acquittal and that the relevant provisions did not exclude the possibility for courts to make such an award in respect of damage sustained as a result of criminal prosecution in other situations, account being taken of the particular circumstances of the case. 32. The Constitutional Court specifically noted in its ruling no.", "1583‑O‑O of 17 November 2011 that, pursuant to Article 133 § 3 of the CCP, any person who was unlawfully held in detention in connection with his criminal prosecution had a right, under the rules of Chapter 18 of the CCP, to compensation for the damage sustained. 33. In its resolution (постановление) no. 17 of 29 November 2011, the Plenary of the Supreme Court of Russia provided clarifications on the application by the courts of the provisions concerning compensation for pecuniary and non-pecuniary damage sustained as a result of unlawful criminal prosecution. It noted, among other things, that in assessing claims for compensation of non-pecuniary damage the domestic courts were to take into account the level and nature of the physical and mental suffering and the individual characteristics of the person who had sustained the damage, and other circumstances, such as the length of the proceedings against him, the length and conditions of his detention on remand, and the type of penitentiary institution where he had served his sentence, as well as considerations of justice and reasonableness.", "The courts were also directed to set out those circumstances in their decisions awarding damages. 34. On the notion of “unlawfulness” of criminal prosecution and detention, as interpreted by the Russian courts, see Trepashkin v. Russia (no. 36898/03, § 62, 19 July 2007). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 35. The applicant complained under Articles 5 and 6 of the Convention that his detention between 20 and 22 March 2005 had been unlawful. The Court considers that this complaint falls to be examined under Article 5 § 1 (c) of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...” A. Submissions by the parties 36.", "The Government argued that the applicant could no longer claim to be a “victim” of the alleged breach of Article 5 of the Convention because the domestic courts had declared his detention on remand unlawful and had awarded him compensation of RUB 100,000. They stated, in particular, that the courts had found unlawful the entire period of the applicant’s detention on remand, which, in the Government’s submission, was to be understood as also covering the time span between 20 and 22 March 2005 in respect of which the applicant had complained to the Court. The Government concluded that the domestic authorities had not only acknowledged the breach of the applicant’s rights but had also afforded him appropriate redress. 37. The applicant stressed that the domestic courts had declared his detention on remand unlawful only after his acquittal, and that when he had complained to the Regional Court that his detention between 20 and 22 March 2005 had been unlawful, it had dismissed his submissions, stating that the irregularity in question was “insignificant”.", "The applicant therefore considered that he retained “victim” status. B. The Court’s assessment 1. Admissibility 38. Having regard to the parties’ submissions, the Court has first to assess whether the applicant has ceased to be a “victim” of the alleged breach of Article 5, as argued by the Government.", "39. In this regard the Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. At the same time, a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010, with further references). 40.", "The Government submitted that the domestic courts’ findings in the compensation proceedings to the effect that the applicant’s detention had been unlawful were to be regarded as covering the entire period of his detention, including the impugned time span between 20 and 22 March 2005. 41. In this connection, the Court notes at the outset that it has already had an opportunity to examine similar arguments by the Government in a number of cases involving “rehabilitation proceedings” where the Russian courts found the applicants’ detention on remand unlawful following their acquittal (see, for example, Trepashkin v. Russia, cited above, §§ 69-70, and Shcherbakov v. Russia, no. 23939/02, §§ 55-63, 17 June 2010). 42.", "In particular, in its Trepashkin judgment the Court pointed out that although the domestic courts’ findings concerning the unlawfulness of the applicant’s detention resulted from his acquittal and the courts had not analysed in detail his specific submissions under Article 5 concerning the irregularities in his detention, it was prepared to assume that the relevant decisions contained, at least in substance, an acknowledgment of a breach of his rights under Article 5. Emphasising that it would not adopt an approach of excessive formalism, the Court reasoned that the “unlawfulness” ascertained by the domestic courts was of a more general character than the “unlawfulness” referred to by the applicant (see Trepashkin, cited above, §§ 69-70). 43. Having regard to the cases mentioned above and to the relevant provisions of the domestic law, as construed by the national courts (see paragraphs 25-32 above), the Court reaffirms, on a more general level, that it cannot be excluded that an acquitted applicant who is no longer detained under Article 5 § 1 (c) and who has duly pursued compensation proceedings and has been awarded damages under the above-mentioned provisions, may cease to be a “victim” of the alleged breach of his rights under Article 5 § 1(c), provided that the relevant decisions of the domestic courts comply with the requirements of acknowledgment and redress, as set down in the Court’s case-law. In this regard it also takes note of the decisions of the Constitutional Court, which appear to suggest that an opportunity to seek damages in connection with the unlawfulness of one’s detention is, moreover, not limited to situations of acquittal (see, in particular, paragraphs 30-32 above).", "44. In any event, the Court reiterates that its task is not to review the compatibility of the relevant law and practice with the Convention in abstracto (see, for example, Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145‑B), but to determine, as has been pointed out above, whether the applicant in the present case can still claim to be a “victim” of the alleged breach of his rights under Article 5 § 1 of the Convention. 45. Turning to the circumstances of the case, and having regard to the parties’ submissions and the decisions of the domestic courts, the Court finds that it cannot accept the Government’s argument as convincing for the following reasons.", "46. As regards the acknowledgment of the alleged breach of the applicant’s rights, the Court reiterates that the gist of the applicant’s complaint is the alleged unlawfulness of his detention between 20 and 22 March 2005, owing to the lack of judicial authorisation for it. It is further pointed out that the applicant duly brought his grievance to the attention of the Regional Court when challenging the decision of 22 March 2005 on appeal (see paragraph 14 above), and it follows from the District and the Regional Courts’ decisions that both authorities had no doubts about the existence of the impugned gap between his detention orders (see paragraphs 13 and 15 above). 47. However, the Regional Court dismissed the applicant’s arguments as “insignificant”, finding that the District Court had not breached the applicable rules of criminal procedure in extending his detention (see paragraph 15 above).", "In other words, it remains unclear if the Regional Court acknowledged the alleged breach of the applicant’s rights on account of the gap between the detention orders. 48. The Court further observes that in the compensation proceedings which followed the applicant’s acquittal the District Court found that his prosecution had been unlawful and also noted that he had been “unlawfully held in detention” (see paragraph 18 above). At the same time and in the same judgment the court held that “the [applicant’s] arrest [and] placement in custody and the extension of [his] detention were carried out in accordance with the law of criminal procedure” (ibid.). 49.", "Having regard to what has been stated above, the Court considers that the findings of the domestic courts in the detention and compensation proceedings are unclear and ambiguous, as regards the acknowledgment of the alleged breach of the applicant’s rights. The Government failed to explain why, in their view, the Court in its assessment should prefer the findings of the courts in the compensation proceedings over those in the detention proceedings and also provided no explanation for the discrepancies in the District Court judgment of 6 March 2007 mentioned above. In this connection the Court specifically notes that the present case has to be distinguished from the Trepashkin case mentioned above, where the domestic courts had unequivocally established the unlawfulness of the impugned period of the applicant’s detention before he was acquitted and awarded damages in the compensation proceedings (see judgment cited above, § 12). Therefore it has serious doubts as to whether the domestic authorities can be said to have acknowledged, even in substance, the alleged breach of the applicant’s rights in the present case. 50.", "In any event, even assuming that they did so, the Court is not persuaded that the applicant was afforded adequate redress. 51. In this connection the Court reiterates that it is prepared to accept that monetary compensation for damage can constitute “appropriate” redress for an applicant who, by the time he is awarded it, is no longer in detention (see Trepashkin, cited above, § 72, with further references). 52. It remains to be ascertained whether the redress afforded to the applicant can be considered “sufficient” (see Shilbergs v. Russia, no.", "20075/03, §§ 72-74, 17 December 2009) 53. In this regard the Court points out that after the decisions of the courts in the compensation proceedings had been set aside in the part concerning compensation for pecuniary damage, it was open to the applicant to seek those damages in the criminal courts, but there is no indication that he availed himself of that possibility (see paragraphs 21 and 22 above). Nor did he raise this specific issue in his submissions to this Court. 54. As to the award in respect of non-pecuniary damage, the Court notes that it is unable to assess whether it was “sufficient”.", "In particular, when applying for compensation the applicant did not specifically complain about the gap between the detention orders (see, by contrast, Trepashkin, cited above, § 12), which the Court does not find unreasonable, given that the Regional Court, by a final decision, had already dismissed those submissions duly raised by the applicant when he was still in detention. Hence, whilst in Trepashkin the applicant’s complaint to the courts in the compensation proceedings about a specific period of his detention enabled the Court, among other things, to accept that he had been awarded damages on that account, it cannot reach a similar conclusion in the present case. Moreover, while in the present case the domestic courts referred to the applicant’s detention when making their award, the gist of their findings appears to have concerned mostly the unlawfulness of the applicant’s criminal prosecution. 55. In sum, having regard to what has been stated above, the Court dismisses the Government’s argument and holds that the applicant may still claim to be a “victim” of the alleged breach of his rights under Article 5 § 1 of the Convention.", "56. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 57.", "The Court notes, and this was not disputed by the parties, that there was no valid judicial authorisation for the applicant’s detention on 21 March and until the new detention order was issued on 22 March 2005. 58. In this regard it reiterates that for detention to meet the standard of “lawfulness” it must have a basis in the domestic law (see, among many other authorities, Khudoyorov v. Russia, no. 6847/02, § 149, ECHR 2005‑X (extracts)). 59.", "In examining the applicant’s complaint the Regional Court found that his arguments concerning the lack of judicial authorisation for his detention on 21 March 2005 were “insignificant”. The Court will not dwell upon the exact meaning of that statement, which remains rather unclear. It notes, however, that both the District and the Regional Courts acknowledged that there had been a gap between the applicant’s detention orders. 60. It further observes that the Government did not refer to any legal provisions permitting an accused to continue to be held in custody once the authorised period of his detention had expired (see ibid.)", "Moreover, it follows from the relevant provisions of the domestic law that the power to extend the detention of an accused in criminal proceedings is vested in courts and that no exceptions to that rule are permitted or provided for, no matter how short the duration of the detention (see paragraphs 23 and 24 above; Khudoyorov, cited above, § 149; Lebedev v. Russia, no. 4493/04, § 59, 25 October 2007; compare Nikolov v. Bulgaria, no. 38884/97, § 85, 30 January 2003; Salayev v. Azerbaijan, no. 40900/05, §§ 46-48, 9 November 2010). Accordingly, having regard to the fact that during the relevant period of time there was no judicial decision authorising the applicant’s detention, the Court concludes that his detention on 21 March 2005 and until the new detention order was issued on 22 March 2005 was “unlawful” (see also Starokadomskiy v. Russia, no.", "42239/02, §§ 62-64, 31 July 2008). 61. It follows that there has been a violation of Article 5 § 1 (c) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 62.", "The applicant further complained under Articles 5 and 6 of the Convention that on 22 March 2005 the District Court had examined the prosecution’s request for the extension of his detention in the absence of his counsel, and that it had not considered appointing legal-aid counsel for him or adjourning the hearing. The Court will examine this complaint under Article 5 § 4 of the Convention (see Khodorkovskiy v. Russia, no. 5829/04, § 203, 31 May 2011, and Sokurenko v. Russia, no. 33619/04, §§ 94-95, 10 January 2012). Article 5 § 4 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.” 63.", "The Court notes that in the detention proceedings the applicant was represented by a private counsel and that on 17 March 2005 the District Court decided to postpone the hearing on the applicant’s detention because of his lawyer’s absence. It follows from the relevant court decision (see paragraph 11 above) – and this was not contested by the applicant – that his counsel was duly apprised of the hearing of 17 March 2005 and did not request that it be postponed, or otherwise refer to any reasons preventing him from attending. It can furthermore be seen from the material available to the Court that the applicant’s lawyer failed to attend the rescheduled hearing of 22 March 2005, despite the fact the he had been notified of it against his signature the day before (see paragraph 12 above). According to the hearing record, the applicant, when duly consulted by the District Court, confirmed that he had no objections to the examination of the detention issue in the absence of his counsel (see paragraph 13 above). 64.", "The Court reiterates that detention proceedings require special expedition and Article 5 does not contain any explicit mention of a right to legal assistance in this connection. The difference in aims explains why Article 5 contains more flexible procedural requirements than Article 6 while being much more stringent as regards speediness. Therefore, as a rule, the judge may decide not to wait until a detainee avails himself of legal assistance, and the authorities are not obliged to provide him with free legal aid in the context of detention proceedings (see Lebedev v. Russia, cited above, § 84). 65. Having regard to what has been stated above, the Court concludes that the applicant’s complaint about the domestic courts’ examination of the detention issue in his counsel’s absence is manifestly ill-founded and should be dismissed pursuant to Article 35 §§ 1 and 3 (a) of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 67. The applicant claimed 1,000,000 Russian roubles (RUB) in respect of non‑pecuniary damage in connection with his unlawful criminal prosecution and detention.", "68. The Government argued that they did not consider that the applicant’s rights had been violated and submitted that, should the Court find a breach of the Convention, the finding of a violation would constitute sufficient just satisfaction. 69. The Court reiterates that the amount of compensation to be awarded for non-pecuniary damage is assessed with a view to providing “reparation for the anxiety, inconvenience and uncertainty caused by the violation” (see, for example, Ramadhi and Others v. Albania, no. 38222/02, § 99, 13 November 2007, and Shtukaturov v. Russia (just satisfaction), no.", "44009/05, § 13, 4 March 2010). 70. It further notes that, in so far as the applicant may be understood to claim compensation for non-pecuniary damage in connection with the criminal proceedings against him, his criminal prosecution is not the subject of the present application. Accordingly, his claims in this regard should be dismissed. 71.", "At the same time, the Court observes that it has found a violation of Article 5 § 1 of the Convention on account of the unlawfulness of the applicant’s detention on 21 March 2005 and until the issuing of a new detention order on 22 March 2005. The Court considers that the breach of the Convention established in the case cannot be compensated solely by the finding of a violation and accordingly awards the applicant 500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable to him. B. Costs and expenses 72. The applicant made no claims in respect of costs and expenses.", "Accordingly, the Court considers that there is no call to award him any sum on that account. C. Default interest 73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 5 § 1 concerning the unlawfulness of the applicant’s detention on 21 March 2005 and until a new detention order was issued on 22 March 2005 admissible and the remainder of the application inadmissible; 2.", "Holds that there has been a violation of Article 5 § 1 (c) of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 500 (five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian Roubles at the rate applicable on the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 September 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenNina VajićRegistrarPresident" ]

[ "THIRD SECTION CASE OF VAN AND OTHERS v. RUSSIA (Applications nos. 20213/05, 4482/06, 43519/06, 49045/06, 11213/07, 12688/07, 42174/07 and 39347/08) JUDGMENT STRASBOURG 21 July 2016 This judgment is final but it may be subject to editorial revision. In the case of Van and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Helena Jäderblom, President,Dmitry Dedov,Branko Lubarda, judges,and Hasan Bakırcı Deputy Section Registrar, Having deliberated in private on 30 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Russian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings.", "The applicants also raised other complaints under the provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6.", "The applicants complained principally that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 7. The Government made two objections. They first asked the Court to strike out case no. 4482/06, given that the criminal proceedings in that case had been discontinued and the applicant had been awarded RUB 19,336 (approximately EUR 542) in non-pecuniary damage in respect of his unlawful prosecution.", "They insisted that he had therefore lost his victim status in connection with his length complaint. 8. The Court observes in this respect that where domestic proceedings include an admission of the breach by the national authorities and the payment of a sum of money amounting to redress, the applicant can no longer claim to be a victim of a violation of the Convention (see, among many other authorities, Shcherbakov v. Russia, no. 23939/02, §§ 55-64, 17 June 2010). 9.", "In the light of the material in the case file and having regard to the particular circumstances of the case, the Court considers that the sum awarded to the applicant in case no. 4482/06 cannot be considered sufficient and therefore did not amount to appropriate redress for the violation suffered. The applicant therefore did not lose his status as a victim within the meaning of Article 34 of the Convention and the Government’s objection in this regard must therefore be rejected. 10. The Government further argued that some applicants (cases nos.", "20213/05, 4482/06, 43519/06, 11213/07, 42174/07, 39347/08) had failed to exhaust domestic remedies available to them before and after the adoption of the pilot judgement Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009). 11. As regards the domestic remedies existing prior to the adoption of the aforementioned pilot judgment, the Court reiterates its previous finding that at the time when the applicants brought their applications to Strasbourg there was no effective remedy under Russian law capable of affording redress for the unreasonable length of criminal proceedings (see Borzhonov v. Russia, no.", "18274/04, §§ 36, 22 January 2009). 12. As regards the domestic remedy introduced in response to the aforementioned pilot judgment, the Court reiterates its position that it would be unfair to request the applicants whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court to bring again their claims before domestic tribunals (see, for similar reasoning, Fateyenkov and Others v. Russia, no. 44099/04 et al., 18 February 2016, with further references). In line with this principle, the Court decides to proceed with the examination of the present cases (see, mutatis mutandis, Utyuzhnikova v. Russia, no.", "25957/03, §§ 48-52, 7 October 2010; compare with Fakhretdinov and Others v. Russia (dec.), no. 26716/09, § 32, 23 September 2010) and, accordingly, dismisses the Government’s non-exhaustion objection. 13. Proceeding further with the examination of the cases, the Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000‑VII). 14. In the leading case of Nakhmanovich v. Russia, no. 55669/00, 2 March 2006, the Court already found a violation in respect of issues similar to those in the present case. 15.", "Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 16. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 17. Relying on Article 13 of the Convention, the applicants further complained of the lack of an effective venue in Russia to complain about the length of proceedings. Article 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 18. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).", "It notes that the Government did not indicate any remedy that could have expedited the determination of the applicants’ cases at the time when they were pending before the Russian courts. 19. In view of the findings above and those made by the Court in paragraphs 11-13 above, the complaints under Article 13 of the Convention are declared admissible. The Court further concludes that in the present cases there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding their right to have their cases heard within a reasonable time, as set forth in Article 6 § 1 of the Convention. IV.", "REMAINING COMPLAINTS 20. Some applicants also raised other complaints under various Articles of the Convention. 21. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 22.", "It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. 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.” 24. Regard being had to the documents in its possession and to its case‑law (see, in particular, Kulida v. Russia, no. 44049/09, 17 June 2014, Dimov v. Russia, no.", "7427/06, 23 September 2014; and Skrylev and Others v. Russia, no. 15754/06, 15 April 2014), the Court finds it reasonable to award the sums indicated in the appended table. 25. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.", "Decides to join the applications; 2. Declares the complaints concerning the excessive length of criminal proceedings and the lack of an effective domestic remedy in this connection admissible and the remainder of the applications nos. 20213/05, 4482/06, 43519/06, 49045/06, 11213/07, 42174/07 and 39347/08 inadmissible; 3. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention concerning the excessive length of criminal proceedings; 4. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective remedy to complain about the excessive length of the proceedings; 5.", "Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 21 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıHelena JäderblomDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (excessive length of criminal proceedings) No. Application no. Date of introduction Applicant name Date of birth / Date of registration Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage per applicant (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2] 20213/05 27/05/2005 Tatyana Tepneyeva VAN 02/07/1967 Sadokhin Vladimir Alekseyevich Khabarovsk 04/06/1999 24/03/2005 5 year(s) and 9 month(s) and 21 day(s) 3 level(s) of jurisdiction Art.", "13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 4482/06 03/01/2006 Nikolay Fedorovich FEDOROV 06/01/1961 24/08/2001 31/01/2006 4 year(s) and 5 month(s) and 8 day(s) 2 level(s) of jurisdiction Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 758 43519/06 09/10/2006 Andrey Pavlovich AZATOV 24/12/1999 30/05/2006 6 year(s) and 5 month(s) and 7 day(s) 2 level(s) of jurisdiction Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 2,500 49045/06 07/11/2006 Sergey Ludisovich BAUMANIS 13/05/1962 24/10/2001 24/11/2009 8 year(s) and 1 month(s) and 1 day(s) 3 level(s) of jurisdiction Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 2,000 320 11213/07 09/01/2007 Nelli Nikolayevna BUNEYEVA 29/07/1940 Sivoldayev Ilya Vladimirovich Voronezh 04/06/2002 07/11/2006 4 year(s) and 5 month(s) and 4 day(s) 3 level(s) of jurisdiction Art. 13 - lack of any effective remedy in respect of inadequate conditions of detention 1,300 500 12688/07 22/01/2007 Georgiy Ivanovich UZUN 15/08/1961 Marchenko Aleksandr Nikolayevich Lodeynoye Pole 05/05/1998 22/11/2006 8 year(s) and 6 month(s) and 18 day(s) 3 level(s) of jurisdiction Art.", "13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 3,000 42174/07 17/09/2007 Oleg Vladimirovich AKINDINOV 02/11/1959 05/05/1998 21/03/2007 8 year(s) and 10 month(s) and 17 day(s) 3 level(s) of jurisdiction Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 3,000 39347/08 08/07/2008 Aleksey Anatolyevich ZHUKOV 12/11/1954 14/01/2004 29/01/2008 4 year(s) and 16 day(s) 3 level(s) of jurisdiction Art. 13 - lack of any effective remedy in domestic law in respect of excessive length of criminal proceedings 1,300 500 [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants." ]

[ "SECOND SECTION CASE OF BUTKEVIČIUS v. LITHUANIA (Application no. 23369/06) JUDGMENT STRASBOURG 17 January 2012 This judgment is final but it may be subject to editorial revision. In the case of Butkevičius v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Dragoljub Popović, President,Danutė Jočienė,Paulo Pinto de Albuquerque, judges,and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 13 December 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 23369/06) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Jonas Butkevičius (“the applicant”), on 27 May 2006.", "2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3. On 25 June 2008 the President of the Second Section decided to give notice to the Government of the applicant’s complaint under Article 6 § 1 of the Convention. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).", "In accordance with Protocol No. 14, the application was assigned to a committee of three Judges. The Government objected to the examination of the application by a committee. After having considered the Government’s objection, the Court rejected it. THE FACTS I.", "THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1936 and lives in the town of Karmėlava, Kaunas region. 5. On 4 February 1994 the applicant loaned 6,000 Lithuanian litai (LTL, approximately 1,740 euros (EUR)) to a private enterprise. Given that in the following months the enterprise failed to fulfil its obligations under the agreement, the applicant sued it.", "A. Civil proceedings regarding the recovery of the debt 6. On 15 June 1994 the Kaunas City District Court granted the claim and awarded the applicant the amount of the loan plus interest, amounting to LTL 8,400 (approximately EUR 2,435). The court decision was sent to the bailiff for execution. However, on 17 December 1996 the bailiff returned the execution order to the applicant, stating that there was no property against which the execution of the decision could be carried out.", "B. Criminal proceedings 7. On 28 November 1994 a pre-trial investigation was opened. 8. On 13 March 1995 the applicant was recognized as a victim and civil claimant in that criminal case.", "9. On 2 May 1996 and 3 June 1996 criminal charges were brought against two persons, a director of the enterprise and its shareholder, on suspicion of a fraud and violation of the laws regulating monetary operations. 10. On 20 January 1997 the Kaunas City District Court examined the case and returned it for further investigation. The court established that various procedural requirements had been violated.", "11. On 16 June 1999 the bill of indictment was issued again. 12. On 31 May 2001 the Kaunas City District Court convicted the accused and granted the applicant’s civil claim in the sum of LTL 8,400. 13.", "On 15 November 2001 the Kaunas Regional Court remitted the case, stating that the lower court had not examined the case thoroughly, had made a number of procedural errors and had not reasoned its decision sufficiently. 14. On 12 January 2004 the Kaunas City District Court re-examined the case and again convicted the accused and granted the applicant’s civil claim in the sum of LTL 8,400. 15. On 9 June 2004 the Kaunas Regional Court ordered a further expert report as the lower court had failed to put all the relevant questions to the experts.", "16. On 13 April 2005 the Kaunas Regional Court annulled the decision of the first-instance court and terminated the case against the accused due to the expiration of the statutory time-limit. Subsequently the civil claim by the applicant was left unexamined. 17. On 11 October 2005 the Supreme Court dismissed a cassation appeal lodged by the applicant, who was present at the hearing.", "The court stated, nonetheless, that the applicant had a right to bring a separate civil claim and concluded that, although the statutory time-limit for such a claim had expired, the delay was partially attributable to the State itself, thus the time-limit for the claim had to be restored. 18. The Court has no information that the applicant had ever lodged such separate civil claim against the successor of the enterprise or other persons. C. Civil proceedings for damages against the State 19. The applicant lodged a separate civil claim for damages alleging the unreasonable length of the criminal proceedings that was caused by the domestic courts.", "He invoked Article 6.272 § 1 of the Civil Code and claimed the sum of LTL 151,212 (approximately EUR 43,800), comprising the debt of the enterprise plus interest for the whole period, taking into account inflation, and an award for non-pecuniary damage as well as cost for legal expenses. 20. On 10 May 2005 the Kaunas Regional Court dismissed that claim, having established no illegal actions by the State institutions. On 11 October 2005 the Court of Appeal upheld the decision of the lower court. On 4 January 2006 the Supreme Court refused to entertain the cassation appeal lodged by the applicant as raising no important legal issues.", "II. RELEVANT DOMESTIC LAW AND PRACTICE 21. Article 6.272 § 1 of the Civil Code allows a civil claim for pecuniary and non-pecuniary damage arising from the unlawful actions of investigating authorities or courts in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement, or an unlawful administrative penalty. According to recent domestic case-law, this provision may also allow claims for damages arising from the excessive length of criminal proceedings (see Šulcas v. Lithuania, no.", "35624/04, § 52, 5 January 2010). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 22. The applicant complained that the length of criminal proceedings in which he was a civil claimant had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. The Article reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 1.", "The parties’ submissions 23. The Government argued that the applicant’s civil rights had already been determined by the Kaunas City District Court upon adopting the decision of 15 June 1994, thus the criminal proceedings in which the applicant was a civil claimant did not concern the determination of his civil rights, and the application was incompatible ratione materiae. 24. The Government then maintained that the applicant failed to exhaust domestic remedies available to him. First, the applicant had not contested the bailiff’s actions in relation to the execution of the Kaunas City District Court decision of 15 June 1994.", "Second, the applicant had not launched another claim as suggested in the decision of the Supreme Court of 11 October 2005. Finally, the Government argued that the applicant failed to exhaust domestic remedies, because he had failed to submit “a proper” cassation appeal in the proceedings for damages for lengthy criminal proceedings. 25. The applicant contested the Government’s arguments. 2.", "The Court’s assessment 26. The Court observes that the national courts had included the applicant in the criminal proceedings with the status of a civil claimant, thus providing for his civil rights to be determined within the criminal proceedings in question. Accordingly, the criminal proceedings concerned the applicant’s civil rights and the complaint is not incompatible ratione materiae with the provisions of the Convention. 27. The Court also finds that it is of no significance in the present case whether the applicant had launched any complaints in relation to the execution of the Kaunas City District Court decision of 15 June 1994, as such complaint would not constitute a redress for the length of the criminal proceedings, to which the applicant was a party.", "28. As concerns the possibility for the applicant to launch another civil claim for recovery of the debt and interest, the Court observes that even if such action could be considered an effective remedy for recovering of the debt, it has no relevance for the issue at stake, that is - redress for the length of the proceedings. 29. The Court observes that the applicant had claimed damages for the excessive length of proceedings under Article 6.272 § 1 of the Civil Code. As to his cassation appeal in this regard, the Court notes that the Supreme Court refused to accept the applicant’s cassation appeal for examination, on the basis that it contained no grounds for cassation.", "It is clear that it is solely for the Supreme Court to decide the questions of domestic law, particularly whether the case was important for uniform interpretation of Lithuanian law. What matters for the Court is whether in those cassation appeals the applicant, “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law”, has raised the complaint which he subsequently made to Strasbourg Court (see Lietuvos Nacionalinis Radijas ir Televizija and Tapinas ir partneriai v. Lithuania, no. 27930/05, 6 July 2010; Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I). The Court observes that in the present case this requirement has been met.", "30. Accordingly, the Court holds that the applicant had exhausted all domestic remedies available to him. 31. The Court notes that this complaint is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 1. The parties’ submissions 32. The Government argued that although the criminal proceedings were comparatively lengthy, the “reasonable time” requirement was not breached in the present case as the proceedings were extremely complex. In particular, the criminal case consisted of 37 volumes, and included more than 500 victims and civil claimants.", "Numerous actions had to be taken by the investigation authorities, and a number of expert examinations were conducted. Additional expert examination at the later stage in the proceedings was also necessary for just solution of the case. Moreover, the defendants in the criminal case contributed substantially to the length of the proceedings. 33. The Government also submitted that the legal system was in transitional period, and there was no established legal practice concerning the application of relevant laws, which further complicated the proceedings.", "34. The applicant contested the Government’s arguments. He argued that the proceedings were unreasonably delayed mainly due to unsatisfactory pre-trial investigation and various procedural violations by the domestic courts. 2. The Court’s assessment 35.", "As regards the period to be taken into consideration, the Court first observes that the applicant was recognized as a civil claimant in the case on 13 March 1995. The Convention entered into force in respect of Lithuania on 20 June 1995. The proceedings ended on 11 October 2005, when the Supreme Court took its decision. The length of the proceedings to be taken into account therefore is ten years and almost four months at three levels of jurisdiction. 36.", "The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 37. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many authorities, Frydlender, cited above; Pachman and Mates v. the Czech Republic, no. 14881/02, § 34, 4 April 2006; Csősz v. Hungary, no.", "34418/04, § 29, 29 January 2008; Norkūnas v. Lithuania, no. 302/05, § 41, 20 January 2009). 38. Turning to the case at hand, the Court notes that the proceedings involved many parties and were therefore of a certain complexity. However, the Court cannot fail to observe that extensive delays in the proceedings were occasioned by mistakes or inertia on the part of the domestic authorities.", "In particular, the case was returned on three occasions for additional investigative measures, expert examination and because of procedural errors (see paragraphs 10, 13 and 15 above). Finally, by the decision of 11 October 2005 the Supreme Court itself acknowledged that the State had contributed to the length of the proceedings. 39. Having regard to all the material submitted to it and to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 40.", "There has accordingly been a breach of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 41. The applicant further complained under Article 6 § 1 of the Convention about the partiality of the judges. In particular the applicant alleged that two judges of the Kaunas Regional Court took part in both appellate proceedings in the same criminal case.", "He also complained that the same judge sat in the criminal case at the appellate instance and cassation instance. Lastly, the applicant complained about the fact that the statutory time-limit had elapsed thus depriving him of recovering his debt. 42. The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with the matter after “all domestic remedies have been exhausted”. The above rule requires that an applicant, before complaining to the Court, should make normal use of accessible, effective and sufficient remedies capable of remedying the situation at issue (see, for example, Grasser v. Germany (dec.), no.", "66491/01, 16 September 2004). On the facts of the case, the Court notes that the applicant failed to make use of his procedural right to challenge the judges of the Kaunas Regional Court. He also did not bring up this complaint in his cassation appeal. The Court further observes that the applicant also did not use his procedural right to request the removal of the judge from the panel of the Supreme Court sitting in the criminal case, although he was present at the hearing of 11 October 2005, and was aware of the composition of the panel. 43.", "The Court also notes that it can not be called upon to speculate whether termination of the present criminal proceedings deprived the applicant from any possibilities to recover the debt in question, especially in the view of the fact that the applicant had not launched the civil claim as suggested by the Supreme Court in its decision of 11 October 2005 (see paragraph 18 above). 44. It follows that the Court is not required to determine whether the facts submitted by the applicant in this part of the application disclose any appearance of a violations of Article 6 § 1 of the Convention, as the applicant failed to exhaust domestic remedies in this respect as required by Article 35 § 1 of the Convention. Therefore, this part of the application must be rejected pursuant to Article 35 § 4. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 46. The applicant claimed LTL 149,212 (approximately EUR 43,200) in respect of pecuniary and non-pecuniary damage. 47.", "The Government contested these claims as unsubstantiated and excessive. 48. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, deciding on an equitable basis, it awards the applicant EUR 4,800 in respect of non-pecuniary damage. B.", "Costs and expenses 49. The applicant also claimed LTL 2,000 (approximately EUR 580) for the costs and expenses incurred before the domestic courts but noted that he did not preserve any documents justifying them. 50. The Government contested the claim on the basis that the applicant failed to submit any supporting documents. 51.", "According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see, for example, Borisov v. Lithuania, no. 9958/04, § 130, 14 June 2011). In the instant case and in the absence of any supporting documentation, the Court makes no award for costs and expenses. C. Default interest 52.", "The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Lithuanian litas at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4.", "Dismisses the remainder of the applicant’s claims for just satisfaction. Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosDragoljub PopovićDeputy RegistrarPresident" ]

[ "FIFTH SECTION CASE OF MAHAMED JAMA v. MALTA (Application no. 10290/13) JUDGMENT STRASBOURG 26 November 2015 FINAL 02/05/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mahamed Jama v. Malta, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Josep Casadevall, President,Angelika Nußberger,Boštjan M. Zupančič,Vincent A. De Gaetano,André Potocki,Helena Jäderblom,Síofra O’Leary, judges,and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 20 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 10290/13) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Somali national, Ms Farhiyo Mahamed Jama (“the applicant”), on 4 February 2013. 2. The applicant was represented by Dr M. Camilleri and Dr K. Camilleri, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.", "3. The applicant alleged that her continued detention for more than eight months was arbitrary and unlawful, and that she had not had a remedy to challenge the lawfulness of that detention. She further complained about the conditions of detention. She relied on Articles 3 and 5 §§ 1, 2, and 4. 4.", "On 5 August 2014 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was (to her knowledge) born in 1996 and at the time of the introduction of the application was detained in Lyster Barracks, Ħal Far. A.", "Background to the case 6. The applicant entered Malta in an irregular manner by boat on 27 May 2012. Upon arrival, she was registered by the immigration police, given an identification number (12H-006), and presented with two documents in English, one containing a Return Decision and the other a Removal Order. 7. The Return Decision stated that she was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”.", "The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 8.", "According to the applicant, the contents of the decision in English were not explained to her, although she could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other. 9. The applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language she did not understand. According to the Government the applicant did not request a booklet in another language.", "10. In accordance with Article 14(2) of the Immigration Act (see Relevant domestic law), the applicant was detained in Lyster Barracks. B. Initial proceedings 11. During the registration process upon her arrival, in the absence of an interpreter, the applicant’s age was recorded as twenty-six (born 1986).", "She claims to have told the authorities that she was sixteen years old. According to the Government, it emerged from the authorities’ records (not submitted to the Court) that the applicant declared that she was born in 1986. 12. On 30 May 2012 the applicant appealed against the Removal Order and Return Decision. By the date of the introduction of the application (4 February 2013), no date had been set for her appeal hearing by the IAB.", "C. Asylum proceedings 13. A few days following her arrival the applicant was called for an information session provided by the staff of the Office of the Refugee Commissioner. She was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law below). She stated on the form that she was sixteen years old. D. The AWAS Age-Assessment Procedure 14.", "On an unspecified date some two months after her arrival in Malta, the applicant was called for an interview with a member of Agency for the Welfare of Asylum Seekers (AWAS) staff, who informed her that as she had claimed to be sixteen years old she would be interviewed by three members of AWAS staff with a view to assessing the veracity of her claim that she was a minor. 15. About a week later, three people from AWAS interviewed her. During the interview a male detainee provided interpretation services. After the interview they informed her that as they could not confirm her minor age through the interview they would send her for a further age verification (FAV) test - an X-ray of the bones of the wrist.", "The applicant was taken for the FAV test about two months after her interview, on 5 October 2012. 16. At the beginning of November, as the applicant had not received any decision from the AAT, she asked a woman from AWAS (who was visiting the detention centre to conduct interviews with other detainees who had health problems) whether she knew anything about her case. The woman told her that her X-ray was being assessed and if she was found to be a minor she would be released soon. Some three weeks later, on 22 November 2012, some other people from AWAS went to the centre and told her that according to the test she was not a minor but an adult.", "During the latter meeting a fellow (female) detainee provided translation. 17. By the date of the lodging of the application the applicant had not received a written decision informing her of the outcome of the age assessment procedure. According to the Government a decision on the applicant’s age was taken on 14 January 2013; no date was submitted regarding notification. The Government submitted that since no care order was issued the applicant was obviously not a minor.", "E. Conditions of detention 18. The applicant was detained in Hermes Block in Lyster Barracks (see paragraph 10 above), in conditions which she considered prison-like and basic. The Government contested this allegation. 19. She explained that the Block is divided into five self-contained zones (one on the ground floor, two on the first floor and two on the second floor) and four of the zones (B,C,D,E) were virtually identical.", "For the first few days of her detention she had been held in Zone E which at the time accommodated families (i.e. couples with or without children), and then she was moved to Zones C and D with other single women. 20. These zones contained a number of dormitories (containing bunk beds but no lockers or cupboards for personal belongings), ten showers and toilets, a small kitchen with one or two hot plates and a fridge (no further storage for food, which was stored in open boxes accessible to insects, was available), and a common room with six basic metal tables and benches screwed to the ground, together with a television. Blankets hanging from bunk beds were the only means of privacy.", "21. Access to the zones was through metal gates which were kept locked all day, and detainees could leave the zone for one and a half hours per day, which they could spend in a small dusty yard. Windows were barred and most of them glazed with opaque Perspex (which was removed in the summer months for air, though they then let air through in the cold winter months). On the one hand, in summer the facility was often crowded and the heat would become oppressive despite the presence of ceiling fans. On the other hand, in winter it was unbearably cold as the facility was not heated and, moreover, was exposed to the elements as there were no adjoining buildings.", "22. The applicant considered that the facility was shared by too many people – in summer the applicant’s dormitory (one out of three in the zone) was shared by twenty women – and agreement amongst so many different persons having cultural and linguistic differences was difficult. However, at the time of the introduction of the application, the applicant was in less crowded conditions, sharing an entire zone with only twenty-five other women, most of whom were Eritrean and Somali. 23. The applicant noted that since her arrival she had only been provided with two bed sheets, a small towel, a blanket, a T-shirt, one pillow and a pillow case, a few items of underwear and a pair of flip-flops, as well as a plastic plate, cup, and set of cutlery.", "Other items of clothing were distributed sporadically. She stated that she was never provided with a quilt, a bra or running shoes. While toilet paper was distributed on a monthly basis, certain basic items such as sanitary pads were missing. In winter detainees were not systematically provided with warm clothes and closed shoes, which were distributed according to what was received by way of donation and which was not sufficient to supply the needs of all detainees. Although blankets were distributed to everyone, the building was not heated and winter months were unbearably cold.", "24. Detainees had little to do all day, and only limited access to open air. In particular, the applicant noted that she was let out into the small dirty yard for the first time only after a few months of detention. While in the yard, other male detainees called out names and picked on the women from the windows of their rooms overlooking the yard. The applicant referred to the report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012 (see paragraph 45 below).", "25. She also noted that although telephone cards were distributed (each of 5 Euro (EUR)), the credit they contained was often insufficient to make long distance calls and no cheaper ways of keeping contact with the family or outside world were available as they had no internet access. By the time she lodged her application she had received EUR 25 in credit. The applicant also considered inappropriate that detainees were given the same soap to use for their bodies, hair, clothes and floor. The applicant further made reference to an incident with a detention officer who had pushed her down the stairs and tried to forcefully resuscitate her by slapping her and grabbing different parts of her face leaving her in pain – she, however, admitted that she could not recognise the officer in question and that she had feared reprisal had she reported the matter.", "26. Furthermore, as could be seen from the results of the Jesuit Refugee Service (JRS) Europe study on detention of vulnerable asylum seekers, the physical conditions of detention and their impact on the physical and mental well-being of detainees were exacerbated by other factors[1]. These factors included: length of detention, lack of constructive activities to occupy detainees, overcrowding, limited access to open air, difficulties in communication with staff and with other detainees, and lack of information about one’s situation. Moreover, there was a lack of any real possibility of obtaining effective redress and inmates knew that detention was not serving any useful purpose and was in no way proportionate to the aim to be achieved. 27.", "The applicant submitted that all of those objective factors had had a particular impact on her because of her personal circumstances, particularly her young age, her inability to communicate in anything but Somali and the fact that as a young woman she was detained in a facility administered almost exclusively by men. F. Latest developments 28. On 24 January 2013 the applicant was called for an interview with the Refugee Commissioner. By means of a decision of the Refugee Commissioner of 2 February 2013, the applicant was granted subsidiary protection in Malta. She was notified of this decision and released on 7 February 2013.", "II. RELEVANT DOMESTIC LAW A. The Immigration Act and the Refugees Act 29. The relevant articles of the above mentioned Acts can be found in Aden Ahmed v. Malta (no. 55352/12, §§ 31-35, 23 July 2013).", "B. Government Policy 30. According to the Irregular Immigrants, Refugees and Integration Policy Document, issued by the Ministry for Justice and Home Affairs and the Ministry for the Family and Social Solidarity, in 2005: “Irregular immigrants who, by virtue of their age and/or physical condition, are considered to be vulnerable are exempt from detention and are accommodated in alternative centres.” 31. The document contains an inclusive list of those categories of migrants considered vulnerable, which includes: “unaccompanied minors, persons with disability, families and pregnant women”. With specific reference to unaccompanied minors and age assessment, the policy document states that: “Unaccompanied children and minors will be placed under state custody in terms of the Children and Young Persons (Care Order) Act (Chapter 285).", "This ensures that an unaccompanied minor is given the same treatment as a Maltese minor. ... The detention of minors should be no longer than what is absolutely necessary to determine their identification and health status. Interviews are to be carried in a ‘child friendly’ manner. Unfortunately there will be cases where individuals make false claims about their age in order to benefit from the terms and conditions of a Care Order.", "In order to ensure, as far as possible, that: (a) Care Orders are only issued in respect of true minors; (b) provisions for minors are not abused, and (c) actual minors are not deprived of the accommodation and services to which they are entitled by virtue of their age and the degree of vulnerability associated with it, Ministry for Justice and Home Affairs in consultation with the Ministry for the Family and Social Solidarity shall, in those cases where there is good reason to suspect the veracity of the minority age claimed by the immigrant, require the individual concerned to undertake an age verification test as soon as possible after arrival.” C. The Age Assessment Procedure 32. In order to give effect to this policy, a procedure known as the Age Assessment Procedure was developed and implemented first by the Refugee Service Area within Aġenzija Appoġġ (the National Agency for children, families and the community) and later by AWAS (formerly OIWAS), with a view to assessing claims to minor age. Although AWAS is not formally charged with the responsibility for this procedure by the law which constitutes it (see below) in practice the said agency has full responsibility for this procedure. 33. In practice, from the information available, it appears that the Age Assessment Procedure consisted of a number of different phases.", "Individuals were referred to the AWAS by the Immigration Police (where they declare to be minors on arrival) or the Refugee Commissioner (where they declare to be minors in their PQ). Following referral, an initial interview is conducted by one member of AWAS staff. Where this interview is inconclusive, a second interview is conducted by a panel of three persons known as the Age Assessment Team (AAT). 34. Where the panel is convinced that the individual concerned is not a minor, the minority age claim is rejected.", "Where a doubt remains, s/he is referred for a Further Age Verification (FAV) test, which essentially consists of an X-ray of the bones of the wrist. Although the AAT is not bound by the results of the test, in practice, it would appear that in most cases where it is resorted to the result will determine the outcome of the assessment. 35. If the individual concerned is found to be a minor, a care order is issued, the individual is released from detention and placed in an appropriate non-custodial residential facility, and a legal guardian is appointed to represent the minor. Once a guardian is appointed the asylum interview is carried out, and during the said interview the minor is assisted by a legal guardian.", "If the individual’s claim to minor age is rejected, AWAS informs the Refugee Commissioner so that his office can proceed with the refugee status determination procedure. 36. In so far as relevant, Regulation 6 of the Agency for the Welfare of Asylum Seekers Regulation, Subsidiary Legislation 217.11, reads as follows: “(1) The function of the Agency shall be the implementation of national legislation and policy concerning the welfare of refugees, persons enjoying international protection and asylum seekers. (2) In the performance of its functions, the Agency shall: (a) oversee the daily management of accommodation facilities either directly or through subcontracting agreements; (b) provide particular services to categories of persons identified as vulnerable according to current policies; (c) provide information programmes to its clients in the areas of employment, housing, education, health and welfare services offered under national schemes; (d) act as facilitator with all public entities responsible for providing services to ensure that national obligations to refugees and asylum seekers are accessible; (e) promote the Government’s policy and schemes regarding resettlement and assisted voluntary returns; (f) maintain data and draw up reports that are considered relevant for its own function and to provide statistics to appropriate policy-making bodies; (g) advice the Minister on new developments in its field of operation and propose policy or legislation required to improve the service given and fulfil any legal obligations in respect of its service users; (h) encourage networking with local voluntary organisations so as to increase the service standards as well as academic research; (i) work with other public stakeholders and, where possible, offer its services to asylum seekers accommodated in other reception centres not under its direct responsibility; and (j) implement such other duties as may be assigned to it by the Minister or his representative.” 37. Regulation 15 of the Procedural Standards in Examining Applications for Refugee Status Regulations Subsidiary Legislation 420.07 -Legal Notice 243 of 2008, as applicable at the time of the present case (prior to amendments in 2014) laid down some basic procedural safeguards applicable when minors are interviewed, including the provision of information about the asylum procedure, assistance with preparation for the interview and presence of the representative during the interview.", "Its paragraph (2) dealt with the use of medical procedures to determine age within the context of an application for asylum. In so far as relevant it read as follows: “(1) In relation to an unaccompanied minor falling within the provisions of article 13(3) of the Act, as soon as possible, and not later than thirty days from the issue of the care order under that article: (a) it shall be ensured that the appointed representative of the unaccompanied minor is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself for the personal interview. The representative shall be present at the interview and may ask questions or make comments within the framework set by the person who conducts the interview; (b) where an unaccompanied minor has a personal interview on his application for asylum, that interview is to be conducted and the decision prepared by a person who has the necessary knowledge of the special needs of minors. (2) Medical examinations to determine the age of unaccompanied minors within the framework of any possible application for asylum may be carried out. Provided that: (a) unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination.", "This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination which may include the rejection of his claim that he is a minor; (b) unaccompanied minors and their representatives consent to carry out the determination of the age of the minors concerned; (c) the decision to reject an application from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal: Provided that an unaccompanied minor who has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum and that the best interests of the minor shall be a primary consideration in any such decision.” 38. Article 15 of the Reception of Asylum Seekers (Minimum Standards) Regulations, Subsidiary Legislation 420.06 – Legal Notice 320 of 2005, states that: “an unaccompanied minor aged sixteen years or over may be placed in accommodation centres for adult asylum seekers.” D. Other Relevant Subsidiary Legislation 39. Part IV of Subsidiary Legislation 217.12, Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Legal Notice 81 of 2011 (Transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member States for returning illegally staying third-country nationals, aka the Return Directive) in so far as relevant, is set out in Aden Ahmed v. Malta (cited above, §§ 31-35). III. RELEVANT MATERIALS 40.", "The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Lyster Barracks, reads as follows: “44. At the time of the visit, Lyster Detention Centre was accommodating 248 foreign nationals (including 89 women), in five different detention units. In keeping with the Government’s Detention Policy, no unaccompanied minors were held in either of the two detention centres visited. Upon issuance of a care order by the Minister of Social Policy, unaccompanied minors were always transferred to a juvenile institution. Single women were always accommodated separately from male detainees.", "47. More generally, the CPT has serious misgivings about the fact that female detainees at Lyster Detention Centre were frequently supervised exclusively by male detention officers, since only one female officer was employed by the Detention Service at the time of the visit. The CPT recommends that the Maltese authorities take steps as a matter of priority to ensure the presence of at least one female officer around the clock at Lyster Detention Centre. 48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre).", "The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly. 55. At both Lyster [and Safi Detention Centres], material conditions have improved since the 2008 visit. In particular, at Lyster Barracks, these improvements are significant: the Hermes Block, which had been in a very poor state of repair at the time of the 2008 visit, had been completely refurbished and the Tent Compound, which had also been criticised by the Committee in the report on the 2008 visit, had been dismantled. At Safi Barracks, additional renovation work had been carried out in Block B.", "It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear. ... 56. At Lyster Detention Centre, the situation had clearly improved as regards activities. Each zone comprised a communal room, and groups of detainees could attend English-language courses which were organised by an NGO (usually, three times a week for two hours per group). Further, single women and couples were provided with food so that they could prepare meals themselves in a kitchenette.", "Every day, detainees could go outside and play football or volleyball in a rather small yard for a total of two hours. ... 60. As regards contact with the outside world, the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months.” 41. In so far as relevant, extracts from a report by Human Rights Watch in 2012 called “Boat-ride to Detention”, reads as follows: “Children lack adequate information about the age determination process (including whether documents are accepted and whether there is an appeal).", "Some migrants who request an age determination procedure are seemingly ignored: interviewees reported telling authorities they were minors but never receiving age determination. Other children never request an age determination because they lack information on the procedure.” “The government should do more to provide children with reliable information about the age determination procedure. Children receive no guidance on the content of the procedure, whether documents will be useful, or whether they can appeal. Malta has taken considerable steps in providing information to migrants about the process for asylum, including by conducting information sessions to every incoming migrant. It could easily do the same for the age determination process.” 42.", "A 2014 report issued by Aditus, a local NGO entitled “Unaccompanied Minor Asylum-Seekers in Malta: a technical Report on Ages Assessment and Guardianship Procedures, reads as follows: “The procedural information provided to persons undergoing age assessment is extremely limited which further excludes the applicant from active participation in the process.” “Under the old procedure [2012] persons were not adequately informed of the possibility of appeal... persons were also typically not informed of the reasons for a negative decision.” “Most experts agree that age assessment is not a determination of chronological age but rather an educated guess. There are risks that due to the inaccuracy of age assessment techniques, persons claiming to be minors may have their age mis‑assessed.” 43. The 9th General report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (the “CPT”) on the CPT’s activities covering the period 1 January to 31 December 1998, at point 26, reads as follows: “Mixed gender staffing is another safeguard against ill-treatment in places of detention, in particular where juveniles are concerned. The presence of both male and female staff can have a beneficial effect in terms of both the custodial ethos and in fostering a degree of normality in a place of detention. Mixed gender staffing also allows for appropriate staff deployment when carrying out gender sensitive tasks, such as searches.", "In this respect, the CPT wishes to stress that, regardless of their age, persons deprived of their liberty should only be searched by staff of the same gender and that any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender; these principles apply a fortiori in respect of juveniles.” 44. Rule 53 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, reads as follows: “(1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution. (2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer. (3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.” 45.", "The report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012, pointed out, inter alia, that: “The ICJ delegation found a lack of leisure facilities in all three detention facilities visited. ... In the Lyster Barracks there was also a small recreation yard, but without direct access from the detention section. Detainees had two hours per day of “air” in the courtyard. They reportedly seldom received visits from outside, apart from the occasional NGO.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 46. The applicant complained about the conditions of her detention. She considered that the situation was in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 47. The Government contested that argument. A. Admissibility 1.", "The Government’s objection as to non-exhaustion of domestic remedies (a) The parties’ submissions (i) The Government 48. The Government submitted that the applicant had not brought her complaint before the domestic authorities. They considered that the applicant had a twofold remedy, namely constitutional redress proceedings to challenge the conditions of her detention while she was in detention and an action for damage in tort after she left detention. They further noted that an action under the European Convention Act was not subject to any time-limits. 49.", "As to the constitutional jurisdictions, the Government submitted that they had wide ranging powers to deal with Convention violations. Such proceedings could also be heard with urgency, reducing the time span of such proceedings to two months from filing. The Government noted that the Court had previously criticised the duration of such proceedings. Nevertheless, a fresh assessment according to prevailing circumstances had to be done in each case. In the Government’s view any delays in constitutional proceedings were counterbalanced by the fact that those jurisdictions could issue interim orders pending proceedings.", "They cited for example a decree in the case of Emanuel Camilleri vs Inspector Louise Callejja and the Commissioner of Police (no. 50/2013) where the Civil Court (First Hall) in its constitutional jurisdiction released a sentenced person from prison pending the proceedings given the particular circumstances of that case, namely where the main witness, who had testified in the applicant’s trial which had ultimately returned a guilty verdict, was now being tried for perjury in connection with her testimony. Thus, in the Government’s view, in the absence of speedy proceedings there nevertheless existed a speedy interim remedy which could be decreed by the constitutional jurisdictions under Article 46 (2) of the Constitution and Article 4 (2) of the European Convention Act. Despite the exceptional circumstances of the case, the example went to show that releasing persons from prison by means of an interim measure was indeed a possibility which could be used by the constitutional jurisdictions, and the applicant had not proved the contrary. 50.", "The Government noted that the applicant could also avail herself of the services of a legal-aid lawyer (governed by Article 911 et seq. of the Code of Organisation and Civil Procedure). 51. The Government further relied on the Court’s general principles cited in Abdi Ahmed and Others v. Malta ((dec.), no. 43985/13, 16 September 2014) and to its findings in that case, where the Court had established that the situation having ended, the duration of proceedings no longer rendered the remedy ineffective.", "The Court had also noted that the applicant had the same chances of lodging domestic proceedings as she had to lodge international proceedings, namely by means of NGO lawyers. 52. The Government considered that the applicant could also have instituted an action for damages in tort where she, as a released detainee, could have obtained damage for loss sustained on the account of her conditions of detention, if she could have proved on the basis of probabilities that she had suffered damage and that such damage was attributable to the Government’s acts or omissions. 53. According to the Government it was evident that these remedies were effective.", "They formed part of the normal process of redress, were accessible, and offered reasonable prospects of success where this was justified. (ii) The applicant 54. The applicant submitted that there existed no effective domestic remedy which should have been used; in fact most of the Government’s arguments had already been rejected by the Court in its judgment in the case of Aden Ahmed v. Malta (no. 55352/12, 23 July 2013) concerning an immigrant detained at around the same time as the applicant in the present case. The Court’s conclusions in that case were in line with the findings of the European Commission Directorate-General for Justice in a report entitled The EU Justice Scoreboard – A tool to promote effective justice and growth (2013), which showed that the Maltese judicial system was one of the systems with the longest delays among the member States.", "By means of example, the case of The Police vs Pauline Vella (42/2007), lodged in 2007, which looked at the conditions of detention at Mount Carmel Hospital, was decided on appeal on 30 September 2011. 55. As to the use of interim measures by the constitutional jurisdictions, the applicant submitted that in the very specific circumstances of the example given by the Government, the first-instance constitutional jurisdiction itself repeatedly stressed, in its decree, the exceptional nature of interim orders. It finally considered that that specific case was serious enough to warrant such a measure. The applicant considered that the circumstances of that case, which pointed towards a wrongful conviction, could not be compared to that of the applicant, and nothing indicated that persons in the applicant’s position would obtain provisional release pending a complaint on conditions of detention.", "56. Similarly, one could not rely on the findings of this Court in Abdi Ahmed and Others (dec.), cited above, which concerned significantly different circumstances, and where, the moment the application was filed, preventive action was no longer necessary. However, in the present case, when the applicant applied to the Court she was still in detention, and thus preventive action was still necessary, but was not available due to the excessive duration of constitutional redress proceedings. 57. Lastly, the applicant also referred to the Court’s considerations regarding a lack of a proper structured system enabling immigration detainees to have concrete access to effective legal aid.", "(b) The Court’s assessment 58. The Court refers to its case-law concerning exhaustion of domestic remedies, in particular in connection with complaints regarding conditions of detention, as reiterated in Aden Ahmed (cited above, §§ 54-58, with references therein). 59. Further, the Court notes firstly, that the circumstances of the present case are different to those in the case of Abdi Ahmed and Others v. Malta ((dec.), no. 43985/13, 16 September 2014), relied on by the Government.", "That case concerned a determination as to whether, following the Court’s decision under Rule 39 of the Rules of Court to indicate to the Government that they should desist from deporting the applicants - a decision which had been respected by the Maltese Government - the applicants in that case had access to an effective remedy (for the purposes of, inter alia, their Article 3 complaint, which did not concern conditions of detention) which they were required to use before continuing their application before this Court. 60. The Court notes that in the present case, when the applicant lodged her application with the Court (on 4 February 2013) complaining, inter alia, about her conditions of detention, the applicant was still in detention, and thus, apart from requiring a remedy providing compensation, she required a preventive remedy capable of putting an end to the allegedly ongoing violation of her right not to be subjected to inhuman or degrading treatment. The Court will thus proceed to assess the matter. 61.", "The Court has already considered in Aden Ahmed (cited above, § 73) that it had not been satisfactorily established that an action in tort may give rise to compensation for any non-pecuniary damage suffered and that it clearly was not a preventive remedy in so far as it cannot impede the continuation of the violation alleged or provide the applicant with an improvement in the detention conditions (see Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, 8 January 2013, particularly § 50, and the case-law cited therein). It thus concluded that it cannot be considered an effective remedy for the purposes of a complaint about conditions of detention under Article 3 (see also, Mikalauskas v. Malta, no. 4458/10, § 49, 23 July 2013). Nothing has been brought to the attention of the Court which could cast doubt on that conclusion.", "62. As to constitutional redress proceedings, again, in Aden Ahmed (cited above, §§ 61-63), the Court held that such an action provides a forum guaranteeing due process of law and effective participation for the aggrieved individual. In such proceedings, courts can take cognisance of the merits of the complaint, make findings of fact and order redress that is tailored to the nature and gravity of the violation. These courts can also make an award of compensation for non‑pecuniary damage and there is no limit on the amount which can be awarded to an applicant for such a violation. The ensuing judicial decision will be binding on the defaulting authority and enforceable against it.", "The Court was therefore satisfied that the existing legal framework rendered this remedy capable, at least in theory, of affording appropriate redress. However, given the delay in those proceedings, the Court held that while it could not rule out that constitutional redress proceedings dealt with urgently (as should be the case concerning complaints of conditions of detention) may in future be considered an effective remedy for the purposes of such complaints under Article 3, the then state of domestic case-law could not allow the Court to find that the applicant was required to have recourse to such a remedy. In the present case the Government have not submitted any further examples enabling the Court to revisit its conclusion concerning the delay in such proceedings. On the contrary, they appear to acknowledge the existence of such delays, arguing however that such delays are counterbalanced by the possibility of interim measures being issued by constitutional jurisdictions pending proceedings. 63.", "In this connection, the Court notes that the example put forward by the Government is indeed very specific and unrelated to circumstances such as those of the present case. Accepting that the provision of examples may be more difficult in smaller jurisdictions, such as in the present case, where the number of cases of a specific kind may be fewer than in the larger jurisdictions, nevertheless the Court notes that the applicant’s example concerning a case of conditions of detention did not have such a measure applied, despite the excessive duration, extending to four years. Similarly, the case of Tafarra Besabe Berhe, referred to by the applicant (in her submissions below, at paragraph 111) concerning the lawfulness of immigrants’ detention and the conditions of such detention, which was still pending six years after it was lodged, also does not appear to have applied such a measure. Admittedly, the Court is aware that no examples may exist because applicants fail to make such requests. However, in the absence of any other comparable examples, the Court finds no indication that the constitutional jurisdictions would be willing on a regular basis to release immigrant detainees pending a decision on their claims on conditions of detention.", "64. It follows that, in circumstances such as those of the present case, the hypothetical possibility that interim measures may be issued pending proceedings does not make up for deficiencies detected in the remedy at issue – a remedy which would be effective both as a preventive and a compensatory remedy, if it were carried out in a timely manner. Thus, current domestic case-law does not allow the Court to find that the applicant was required to have recourse to such a remedy. 65. Further, by their unsubstantiated allegation (see paragraph 50 above) the Government have not dispelled the Court’s previously expressed concerns about the accessibility of such remedies in the light of the apparent lack of a proper structured system enabling immigration detainees to have concrete access to effective legal aid (see Aden Ahmed, cited above, § 66).", "66. In conclusion, none of the remedies put forward by the Government, alone or in aggregate, satisfy the requirements of an effective remedy in the sense of preventing the alleged violation or its continuation in a timely manner. It follows that the Government’s objection is dismissed. 2. Conclusion 67.", "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 68. The applicant considered the conditions of detention to be basic. She noted in particular the lack of access to constructive or recreational activities, insufficient provision of basic needs, lack of information, difficulties communicating with the outside world, limited access to open air, and obstacles in obtaining the most basic services. Other factors which had to be taken into consideration were her young age and her inability to communicate in English. 69.", "Each zone (measuring 300 sq. m according to a Médecins Sans Frontières report) consisted of a landing, three adjacent dormitories all opening on to a narrow corridor, nine or ten showers and toilets, a small room used as a kitchen with one or two hotplates, a common room containing metal tables and benches screwed to the ground, and one television. Free movement between zones was not possible, and for most of the day the detainees were confined to their respective zones. 70. The applicant further submitted that conditions in her zone were particularly difficult in the summer months, as it became crowded because of increased arrivals.", "When the zone was at its full capacity (sixty people), bearing in mind the areas of the dormitories and the common areas, each detainee had an average 5 sq. m. of shelter space, which meant that in August, when the applicant’s zone hosted sixty-nine persons, the average shelter space was of 4.3 sq. m. She further noted that between her arrival in May and July 2012 the detainees were not allowed out of the zone, and thus they spent twenty-four hours inside the cramped space. The applicant felt that it was difficult to live in a room with twenty women, each having different sleeping times, who were noisy when it suited them, and where basic necessities were lacking. 71.", "The applicant particularly complained about the lack of warm clothing, which was never adequately dealt with by the detention centre authorities. The situation was made worse by the lack of heating, the fact that the building was exposed to the elements and had missing windowpanes. 72. The food provided was also of poor quality, lacked variety and was culturally inappropriate. According to reports by Médecins Sans Frontières and the JRS (relevant links submitted to the Court) the diet provided had led to a number of gastrointestinal problems among detainees.", "73. The applicant also complained about the difficulties she had in obtaining information about her situation and the ongoing age assessment procedure. Detainees had nothing to do all day except watch television, and only very limited access (one and half hours) to the open air, in a small dusty yard – indeed she rarely used the yard, for fear of verbal abuse by male detainees who would look at her and sometimes address questions to her – a treatment she found to be humiliating and inappropriate for a Somali woman. She noted that the books in the library were in English, and that the classes held by Integra mentioned by the Government only started after her release as did the telephone service offered by the Red Cross. Any other projects did not consist of more than one activity per week.", "74. Detainees had limited contact with the outside world, as no Internet was available and telephone credit was insufficient for overseas calls. Moreover, in the applicant’s case, her mobile phone had been confiscated on arrival, exacerbating her sense of isolation. 75. The detention centre lacked female staff, and only one woman worked on the shift with the zones.", "This meant that all the care of detained women was carried out by male staff (most having a security background) who guarded the facility, conducted headcounts (in the dormitories twice daily, including the mornings when the women were asleep), took care of the distribution of basic necessities, including items of personal hygiene and underwear, and accompanied them to medical appointments. This state of affairs was confirmed by a local report drawn up by a Maltese magistrate (the Valenzia Report). The applicant also referred to international reports on the matter (see paragraphs 42 and 43 above), and considered that the situation was even more frustrating given that under the domestic system there was no mechanism to complain about ill-treatment or abuse by detention staff. 76. Thus, given her young age and all the factors mentioned above, the applicant considered that she had suffered a breach of Article 3, despite the absence of any medical condition affecting her.", "(b) The Government 77. As to the structure of Hermes Block, the Government submitted that it consisted of three equally sized rooms that together had a total capacity to accommodate sixty people. Records held by detention services showed that during the period that the applicant was housed in Hermes Block, in the month of May 2012, there were sixty-one occupants, while during the peak August month there were sixty-nine detainees. 78. The Government submitted that the zones were well kept and that the Government provided shelter, food, clothing, and medical assistance to migrants.", "In the Government’s view the facility catered for all the needs of the migrants. Gates which separated the different zones were intended to protect the migrants, and separation was provided in relation to migrants having different ethnicities and religious beliefs as well as gender. 79. According to the Government, upon arrival an emergency bag is distributed, containing a towel, two bed sheets, a pair of flip-flops, two T‑shirts, two pairs of shorts, a face soap, a shower gel (which can also be used as shampoo), a bar of laundry soap, a toothbrush and toothpaste, a pillow and pillow case, toilet paper, a plastic cup, a plate and cutlery set, a blanket, a five-euro telephone card, a packet of sanitary towels, and a quilt (for winter arrivals only). A second bag is supplied on the second day, containing bras and underwear, slippers or running shoes, a tracksuit, and other items of clothing.", "Further supplies are provided on a regular basis, such as cleaning products every two weeks in order to secure the cleanliness of the areas. The applicant was also given clothing and supplies to cater for her personal hygiene, and had access to sanitary facilities equipped with hot and cold water, as well as secluded showers. 80. The Government submitted that whilst in detention the applicant was housed in a sheltered compound with adequate bedding and was provided with three meals a day on a daily basis. Meals were provided from a pre‑set menu, however, particular dietary requests were regularly respected and the food supplied respected the relevant religious traditions.", "The detention centres had a medical practitioner and a nurse who provided on‑site treatment and could make referrals to hospital treatment, and “custody clinics” are set up in all compounds housing migrants. 81. Immigration detainees are provided with telephone cards and various telephones can be found in the detention centre. Moreover, the Red Cross also operates a mobile phone calling service on a daily basis. Interpreters are provided for free at the detention centres and while the applicant was in detention, two female detention officers were assigned to the zones where females were held.", "The detainees are further provided with stationery and books on request. They have access to a television, as well as a kitchen offering basic cooking facilities and a common room with tables and benches. They are free to practise their religion and have unlimited access to NGOs and legal assistance (sic). They also have the opportunity to attend language and integration classes provided by NGOs. 82.", "The Government submitted that access to outside exercise was limited to one and a half hours daily per zone. If one zone refused to use its time the allotted time would be added to that of the other zones. During the period of April to July 2012 access to the yard had only been limited because of the significant number of break-outs, and thus was justified for security reasons. According to the Government, on various occasions it was the migrants themselves who refused to go out into the yard. They further noted that the applicant had never complained to the detention officers about any verbal abuse, nor had she ever enquired with the same officers about her age assessment procedure.", "83. As to the absence of heating (which was installed after the applicant’s release), the Government considered that this was counterbalanced by the provision of warm clothing and blankets. In Malta winters were mild and while the coldest temperatures were experienced from January to March, the applicant, who had started her detention in May, had been released in February. The Government also noted that the detention centre made prompt arrangements to remedy broken windows. 84.", "As to the detention staff, the Government considered that it was not debasing to have male staff, given that they were trained. As to the headcounts, they considered that in any event female detainees had to dress appropriately even with respect to other detainees in the dormitory. The Government contested the applicant’s allegation that there was no complaint mechanism, and alleged that instances of misbehaviour were brought to the attention of the Head of Detention Services, either directly by the detainee or through NGOs. Without giving examples, the Government alleged that such complaints were investigated and, where necessary, disciplinary proceedings undertaken. 85.", "The Government referred to the Court’s case-law (Sizarev v. Ukraine, no. 17116/04, 17 January 2013; Selcuk and Akser v. Turkey, nos. 23184/94 and 23185/94, 24 April 1998; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002‑III); and particularly Aden Ahmed (cited above), and the principles cited therein. They considered that the conditions of detention at issue could not be compared to those in facilities in respect of which the Court had found a violation (for example, Dougoz v. Greece, no.", "40907/98, ECHR 2001‑II; S.D. v. Greece, no. 53541/07, 11 June 2009; and A.A. v. Greece, no. 12186/08, 22 July 2010). While shared facilities could create some discomfort, this could not reach the relevant Article 3 threshold.", "In the present case the applicant had been given ample personal space with adequate ventilation and bedding as well as exercise time. She had a balanced and varied diet, and in the absence of heating was supplied with blankets in the winter months, and would have been provided with more had she asked for them. Ceiling fans helped with the heat of the summer months. The Government distinguished the case from that of Aden Ahmed (cited above) in that the detention period in the present case was shorter, and the applicant was not particularly fragile. Bearing in mind all the above, and the fact that the applicant was not a minor, the Government considered that there had not been a violation of Article 3.", "2. The Court’s assessment (a) General principles 86. The Court reiterates that, according to its case-law, ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3.", "However, the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, §§ 95-96, 24 January 2008). 87. Under Article 3, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity and that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Riad and Idiab, cited above, § 99; S.D. v. Greece, cited above, § 47; and A.A. v. Greece, cited above, § 55).", "When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz, cited above, § 46). The length of the period during which a person is detained in specific conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, § 50, 8 November 2005, and Aden Ahmed, cited above, § 86). 88. The extreme lack of personal space in the detention area weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no.", "53254/99, § 36, 7 April 2005, and Yarashonen v. Turkey, no. 72710/11, § 72, 24 June 2014, and, for a detailed analysis of the principles concerning the overcrowding issue, see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 143‑48, 10 January 2012). The provision of four square metres of living space remains the acceptable minimum standard of multi-occupancy accommodation (see Hagyó v. Hungary, no. 52624/10, § 45, 23 April 2013; Torreggiani and Others, cited above, § 76, and Tunis v. Estonia, no.", "429/12, § 44, 19 December 2013, and the cases cited therein). The Court also takes into account the space occupied by the furniture items in the living area in reviewing complaints of overcrowding (see Petrenko v. Russia, no. 30112/04, § 39, 20 January 2011; Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 87, 27 January 2011; and Yarashonen, cited above, § 76). 89.", "The Court further reiterates that, quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 3. Such elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see Ananyev and Others, cited above, § 149 et seq. for further details, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 222, ECHR 2011).", "The Court notes in particular that the Prison Standards developed by the Committee for the Prevention of Torture make specific mention of outdoor exercise and consider it a basic safeguard of prisoners’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out‑of‑cell activities (see Ananyev and Others, cited above, § 150). (b) Application to the present case 90. The Court notes that having regard to the numbers provided by the applicant and confirmed by the Government, and the measurements provided by the applicant and not contested by the Government, on regular months of her detention (excluding August) during which sixty or fewer than sixty people were detained in her zone, and sixty-one being held in May, the applicant had at least 5 square metres of shelter space in her zone. Such a measurement does not refer only to the space available in her dormitory, but to the entirety of the space to which she had access in her zone. However, given that the applicant had in fact the opportunity to move around in the zone, the Court considers that there is no reason why the entirety of the area should not be taken into consideration for the purposes of her living space.", "Even considering that in reality this space should be significantly lower in view of the fixtures in the rooms, both the common rooms and the dormitories (see Yarashonen, § 76, and Torreggiani and Others, § 75, both cited above), the Court considers that the ultimate living space over those months did not go below the acceptable minimum standard of multi-occupancy accommodation. The same must be said for the month of August, where the applicant’s zone had sixty-nine inmates, and thus her average shelter space was 4.3 square metres. Further, the Court notes that in certain months, as for example at the time of the introduction of the application (see paragraph 22 above), the applicant was sharing her zone with only twenty-five people, thus her living space during that period was ample, and at least double that mentioned above. In these circumstances the Court cannot find that the overcrowding was so severe as to justify in itself a finding of a violation of Article 3. 91.", "The Court will thus continue to assess the other aspects of the conditions of detention which are relevant to the assessment of the compliance with Article 3. 92. The Court notes that even scarce space in relative terms may in some circumstances be compensated for by the freedom to spend time away from the dormitory rooms (see Valašinas v. Lithuania, no. 44558/98, § 103 and 107, ECHR 2001‑VIII, and Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004).", "The Court observes that while it is true that adjacent to the dormitories the applicant could move around in the common room as well as the corridors, by the Government’s own admission, during the period of April to July 2012, access to the yard was limited because of the significant number of break-outs. In the Government’s view this limitation was justified for security reasons. The Court observes that no specific date as to when this limitation came to an end in July 2012 was submitted by any of the parties, thus, the applicant having been detained on 27 May 2012, this meant that the applicant had no access to any outdoor exercise for anything between about five and nine weeks. 93. The Court reiterates that access to outdoor exercise is a fundamental component of the protection afforded to those deprived of their liberty under Article 3, and as such it cannot be left to the discretion of the authorities (see Yarashonen, cited above, § 78); according to the CPT, all detainees, even those confined to their cells as a punishment, have a right to at least one hour of exercise in the open air every day regardless of how good the material conditions might be in their cells (see the CPT standards, document no.", "CPT/Inf/E (2002) 1‑Rev. 2013, § 48). These standards also say that outdoor exercise facilities should be reasonably spacious and whenever possible provide shelter from inclement weather (see Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, § 234, 27 January 2015, with further references). The physical characteristics of outdoor exercise facilities are also relevant.", "For instance, an exercise yard that is just two square metres larger than the cell, is surrounded by three-metre-high walls, and has an opening to the sky covered with metal bars and a thick net does not offer inmates proper opportunities for recreation and recuperation (see Ananyev and Others, cited above, § 152, with further references). 94. The Court has already had occasion to comment on the yard referred to in the present case, in Aden Ahmed (cited above, § 96), where it noted that it was considerably small for use by sixty people (recreation being available in one zone at a time), it was secured on three sides by wire fencing topped with barbed wire, and left much to be desired given that it was the only outdoor access enjoyed by detainees for a limited time daily. Further, it is not disputed that in the present case there was not even any access to this yard for an unspecified period of time. The Court considers that the Government’s security argument is no justification, and indeed the authorities should be in a position to provide safe exercise space irrespective of any fears of breakouts.", "The latter concerns may be addressed by other relevant measures falling under the authorities’ responsibility, without impinging on the well-being of all the detainees indiscriminately. 95. Indeed, the Court has already found that the detention of an asylum seeker for three months on police premises pending the application of an administrative measure, with no access to any recreational activities and without proper meals, has been considered to be degrading treatment (see Tabesh v. Greece, no. 8256/07, §§ 38 to 44, 26 November 2009). Moreover, the Court highlights that the detention in the present case was imposed in the context of immigration, and was therefore a measure which is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled their own country.", "However, in the present case, the Court notes the uncertainty of the period during which no access to the yard was possible, a period of between five and nine weeks. Given the unspecified duration of this limitation which appears to have been due to specific circumstances occurring at the time, the Court considers that while the situation was highly regrettable, this element on its own cannot be considered as reaching the relevant threshold, even if accompanied by the fact that applicant did not benefit from regular recreational activities indoors either. This is so, particularly given that the applicant herself admitted that she often did not choose to make use of the allotted yard time. It is however, a matter which must be given its due importance when assessing the cumulative effects of detention. 96.", "As regards the other aspects raised by the applicant, the Court reiterates that suffering from cold and heat cannot be underestimated, as such conditions may affect one’s well-being, and may in extreme circumstances affect health (see Aden Ahmed, cited above, § 94). Nevertheless, the applicant admits that ceiling fans were in place, and despite the fact that Malta is an extremely hot country in the summer months the Court considers that the authorities cannot be expected to provide the most advanced technology. However, the Court is concerned by the applicant’s allegation that detainees suffered from the cold despite the distribution of blankets (see paragraph 23 above). Little comfort can be found in the Government’s argument that the applicant was only detained until February, given that January and February are the coldest months. However, the Court welcomes the Government’s action in this regard, and notes that heating has now been installed.", "While the latter action had no consequence for the applicant, who had been released by then, the Court observes that the provision of blankets must have aided the situation to some extent. 97. For the same reasons as those given in various reports (see paragraphs 40, 43-44 above), the Court also finds disconcerting the lack of female staff in the centre (see also Aden Ahmed, cited above, § 95). The Government admitted that only two females had been working in the detention centre at the time, and did not dispute that only one of them was working in the applicant’s zone. The Government’s submission that male staff were trained to distribute intimate products, even if it were true, cannot counteract the degree of discomfort to the female detainees who were for the most time dealt with and surrounded by male officers for their detention over several months.", "Of some apprehension, is also the fact that little privacy is found in the dormitories, which moreover lack any type of furniture where individuals could store their personal belongings. 98. Against these factors of concern, the Court, however, observes that according to the CPT report cited above (paragraph 40), various improvements have been put in place, both structurally and activity wise, at Lyster barracks. No concern seems to arise about the hygiene facilities, and the applicant has had access to a common area equipped with a television, as well as telephone cards and three meals a day. The meals of which the applicant complains do not appear to have been entirely unbalanced or to have affected her health, nor has the applicant explained what made them culturally inappropriate.", "Further, the applicant’s basic needs have been seen to by the distribution of materials free of charge, and even if it is regrettable that certain materials were not readily available, the applicant was not left unclothed or in unhygienic conditions – even if partly with private help. 99. The Court observes that this situation and the aforementioned conditions persisted for a period of eight months and ten days, a period which it appears could have been shorter had it not been for the applicant’s claim that she was a minor – a claim which turned out to be untruthful. In this connection the Court also highlights the importance of individuals being informed of the stage of their claims to avoid any further anxiety but it also considers that applicants should pursue the matter with the appropriate avenues, or detention officers, orally or in writing. 100.", "Lastly, while it is true that the applicant, being an asylum-seeker, was particularly vulnerable because of everything she had been through during her migration and the traumatic experiences she was likely to have endured previously (see M.S.S. v Belgium and Greece, cited above, § 232), a state of vulnerability which exists irrespective of other health concerns or age factors, the Court does not lose sight of the fact that the applicant in the present case was not more vulnerable than any other adult asylum seeker detained at the time (see, a contrario, Aden Ahmed, cited above, § 97-99). 101. To sum up, while remaining concerned about the lack of access to outdoor exercise, as well as the lack of heating and of female staff, at the time, given the sufficient living space, the provision of basic as well as other needs and appropriate hygienic standards, the Court is of the opinion that the cumulative effect of the conditions complained of did not reach the threshold of Article 3. It follows that in the present case the Court considers that the conditions of the applicant’s detention in Hermes Block did not amount to degrading treatment within the meaning of the Convention.", "102. There has accordingly been no violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 103. The applicant complained that she did not have a remedy which met the requirements of Article 5 § 4, as outlined in the Court’s jurisprudence, to challenge the lawfulness of her detention.", "The provision 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 1. The Government’s objection ratione materiae 104. The Government submitted that Article 5 § 4 did not apply to the present case since, according to the Court’s case-law, such a remedy is no longer required once an individual is lawfully free. They noted that the applicant had been released on 7 February 2013. 105.", "The applicant noted that she was entitled to raise this complaint, since she had not had such a remedy during her detention, and had instituted proceedings before the Court while she was still in detention. 106. While it is true that Article 5 § 4 cannot be relied on by a person who has been lawfully released (see Stephens v. Malta (no. 1), no. 11956/07, § 102, 21 April 2009), the Court notes that when the applicant lodged her application with the Court she was still detained and she was precisely complaining that she did not have an effective remedy to challenge the lawfulness of her detention during the time she was detained.", "She is not complaining of the absence of such a remedy following her release. In consequence the provision is applicable (see Aden Ahmed, cited above, § 105). 107. It follows that the Government’s objection must be dismissed. 2.", "Conclusion 108. 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 109. The applicant relied on the Court’s findings in Louled Massoud v. Malta (no. 24340/08, 27 July 2010), where the Court held that the available remedies in the Maltese domestic system were ineffective and insufficient for the purposes of Article 5 § 4. In respect of Article 25 A (6) of the Immigration Act, she added that, as a rule, the Board granted bail in connection with removal orders, but has done so at least once in connection with a challenge as to the lawfulness of detention under Regulation 11(10).", "Nevertheless, bail could only be granted against a financial deposit (usually around 1,000 euros (EUR)) as well as a third-party guarantee showing that the applicant will have accommodation and subsistence, conditions which were unlikely to be fulfilled by immigrants arriving by boat (as opposed to those overstaying visas). In any event the applicant highlighted that a request for bail concerned temporary release and was independent from a review of the lawfulness of the detention. 110. Following the Louled Massoud judgment the only change in the law concerned the transposition of the EU Return Directive. Nevertheless, the “new” remedy envisaged, namely an application to the Immigration Appeals Board pursuant to Regulation 11 (10) of the mentioned directive, also failed to meet the requirements of speediness, accessibility and certainty.", "Further, it was not even clear whether such a remedy was available in cases such as that of the applicant, in view of the limitations under Regulation 11 (1). This also appeared to be the case given the lack of reference to this remedy by the Government in their first round of observations. Also, there was no information on the possibility of using this remedy to challenge the lawfulness of detention, nor any access to legal aid to attempt the remedy. In any event, to the applicant’s knowledge, of four such applications lodged only one had been determined before the claimants in those cases were released (between two and nine months after the application had been lodged), and the only one determined was decided twelve months after it was lodged. 111.", "As to constitutional proceedings, the applicant relied on the Court’s previous findings, and considered that there were no reasons to alter those findings. Indeed, the three cases concerning lawfulness of detention under Article 5 which were pending before the constitutional jurisdictions while the applicant was detained only showed the excessive duration of such proceedings. Indeed the case of Tafarra Besabe Berhe v. Commissioner of Police (27/2007) showed that requests for hearing with urgency were of little avail, since the case remained pending six years after it was filed, on 8 May 2007. The case of Essa Maneh Et vs Commissioner of Police (53/2008) lodged on 16 December 2009, was also still pending on appeal (in January 2015). A further example, Maximilain Ciantar vs AG (35/2010), had been lodged on 31 May 2010 and had ended on appeal only on 7 January 2011.", "Neither was there any evidence to suggest that the Court Practice and Procedure and Good Order Rules cited by the Government had had any effect on the efficacy and speed of proceedings, as shown by the domestic case-law cited. (b) The Government 112. In their observations concerning the complaint under Article 5 § 4 the Government submitted that the Court’s findings in Aden Ahmed and Suso Musa, both cited above, concerning the ineffectiveness of constitutional proceedings should be revisited by the Court, given the evidence that showed that constitutional jurisdictions could give interim relief pending proceedings (see paragraph 49 above). The Government also contended that it was impossible (sic) to provide a number of examples, given the limitations on small States. 113.", "On indication by the applicant, the Government submitted in their last round of observations that the remedy provided by Regulation 11 was available to the applicant, and could have allowed her release. 114. In connection with their objection of domestic remedies under Article 5 § 1, the Government made reference to subsidiary legislation 12.09, namely the Court Practice and Procedure and Good Order Rules dealing also with constitutional matters, which emphasised the need for speedy resolution of such matters. Secondly, they noted that it was possible for an applicant to request that a case be dealt with, heard and concluded with urgency. The Government strongly objected to the fact that the Court was allowing applicants in cases involving irregular immigrants to circumvent domestic remedies.", "They considered that this could only be done when there were no effective remedies. They also claimed that the applicant had not lodged a request for bail before the Immigration Appeals Board. 2. The Court’s assessment 115. The Court refers to its general principles concerning Article 5 § 4, as established in its case-law and reiterated in Aden Ahmed (cited above, §§ 113‑114, and 120).", "116. The Court notes that it has repeatedly examined in detail the remedies available in Malta for the purposes of Article 5 § 4, and has held that applicants seeking to challenge the lawfulness of their immigrant detention, in the Maltese context, did not have at their disposal an effective and speedy remedy under domestic law (see, for example, Aden Ahmed and Suso Musa, both cited above, § 60 and 123 respectively). Nevertheless, the Government claimed that the Court’s findings should be revised concerning constitutional redress proceedings, despite their inability to submit any examples. They also submitted that the remedy provided by Regulation 11 was available to the applicant and they referred to the possibility of applying for bail before the IAB. 117.", "As to the remedy provided by Regulation 11, the Court observes that the latter regulation states that the provisions of Part IV of the subsidiary legislation 217.12, do not apply to individuals apprehended or intercepted in connection with irregular crossing by sea. The Court notes that Regulation 11 is part of Part IV of the subsidiary legislation mentioned, and the applicant was intercepted in connection with an irregular crossing by sea. Despite the Court’s findings in the cases of Suso Musa and Aden Ahmed (both cited above, §§ 58-59 and §§ 121-122 respectively) that, even assuming that such a remedy applied in the applicant’s case, it was also not effective, the Government failed to explain why such a remedy was still available to the applicant despite such limitation and the circumstances as appeared at the time. In any event, again, the Court notes that not one example was put forward by the Government concerning this remedy, and the examples referred to by the applicant, which, while lacking appropriate substantiation have not been disputed by the Government, continue to show the ineffectiveness of the remedy. Thus, the Court finds no reason to alter its conclusions in Suso Musa and Aden Ahmed (both cited above, §§ 58-59 and §§ 121‑122 respectively).", "Similarly, in reply to an unexplained statement by the Government concerning a request for bail under Article 25 A (6) of the Immigration Act, the Court reiterates its findings in Suso Musa (§§ 56‑58) to the effect that this was also not an effective remedy. 118. Thus, in the absence of any further dispute concerning the Court’s findings in relation to remedies other than constitutional redress proceedings, the Court finds no reasons to re-examine the situations already examined in previous cases (see Aden Ahmed, cited above, §§ 115‑124; Suso Musa, cited above, §§ 52-61; and Louled Massoud, cited above, §§ 42‑47). In particular it notes that in the judgment of Suso Musa, cited above, the Court called for general measures in this connection, and the case remains under consideration by the Committee of Ministers and has not yet been closed. 119.", "As to constitutional redress proceedings, while the illustration of the practical effectiveness of a remedy with examples of domestic case-law may be more difficult in smaller jurisdictions (see Aden Ahmed, cited above, § 63), the Court cannot ignore the fact that the examples from the Maltese context previously brought to the Court’s attention, and reiterated by the applicant in the present case, continue to show that constitutional redress proceedings, are not effective for the purposes of Article 5 § 4, in view of their duration. 120. In so far as, in connection with constitutional redress proceedings, the Government relied on the possibility of obtaining interim relief pending lengthy proceedings, the Court refers to its findings at paragraph 64 in fine, above, and for those reasons considers that it is unlikely that constitutional jurisdictions would be willing on a regular basis to release immigrant detainees pending a decision on their claims of unlawful detention. It follows that, in the Court’s view, constitutional redress proceedings are still not an effective remedy for the purposes of Article 5 § 4. 121.", "It follows from the above that it has not been shown that the applicant had at her disposal an effective and speedy remedy under domestic law by which to challenge the lawfulness of her detention. 122. Article 5 § 4 of the Convention has therefore been violated. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 123.", "The applicant further complained that her continued detention for more than eight months was arbitrary and unlawful, as it did not fall under either of the two limbs under Article 5 § 1 (f). In any event the law was not precise and did not provide for procedural safeguards. Moreover, her continued detention could not be considered reasonably required for the purpose, nor closely connected to the purpose of preventing an unauthorised entry. Furthermore, she had been detained in conditions which were not appropriate for a young single asylum seeker. She relied on Article 5 § 1 of the Convention, which reads as follows: “Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” 124. The Government contested that argument. A. Admissibility 1. The Government’s objection as to non-exhaustion of domestic remedies 125. The Government submitted that the applicant had not brought her complaint before the domestic authorities.", "She had not filed a request for bail before the IAB, nor had she filed constitutional redress proceedings. 126. The Court has already held that the applicant did not have at her disposal an effective and speedy remedy by which to challenge the lawfulness of her detention (see paragraph 121 above). It follows that the Government’s objection must be dismissed. 2.", "Conclusion 127. 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 128. The applicant submitted that her initial detention was for the purpose of deportation as a result of the Removal Order and was in line with Article 14 (2) of the Immigration Act. Nevertheless once she applied for asylum, she could no longer be detained under either limb as, in her view, Maltese law provided that once such application was lodged the asylum seeker “shall not be removed ... and the applicant shall be allowed to enter or remain in Malta pending a final decision” (see Suso Musa, cited above, § 31). However, even assuming that her detention was to be considered as falling under the first limb, she considered that an eight-month detention was arbitrary, as it exceeded the time reasonably required for its purpose, and thus could not be closely connected to the purpose of preventing an unauthorised entry.", "129. Furthermore, she submitted that she had not been kept in conditions which were appropriate for a young single female, and that she had no access to procedural safeguards. 130. The applicant submitted that in spite of the fact that the AWAS procedure can contribute to the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The only reference to age assessment procedures was that in the Government’s policy document and subsidiary legislation (see relevant domestic law above).", "She considered that seven and a half months to reach a determination on her age was unjustifiable irrespective of the result of that process. The applicant submitted that had she withdrawn her claim that she was a minor, she would have been released before, especially because she knew that she would likely get protection, as she was from South Central Somalia. However, the fact that she maintained her claim indicated that she strongly believed that she was a minor. Indeed the applicant noted that according to the Aditus report (see paragraph 42 above, in fine), age assessment was not always accurate. As to the duration of her detention, the applicant relied on the Court’s findings in Suso Musa, cited above.", "131. Regarding the five day detention following the grant of subsidiary protection, the applicant considered that this period did not come under any of the list of exceptions under Article 5 and had no basis in domestic law. Moreover, while a delay of a few hours to carry out administrative formalities might be justified (she referred to Giulia Manzoni v. Italy, 1 July 1997, Reports of Judgments and Decisions 1997‑IV), five days to conduct medical clearance, which consisted of a simple chest X-ray, and to find a place in an Open Centre was not justified. (b) The Government 132. The Government submitted that the applicant’s deprivation of liberty was required for the purpose of repatriation (until she was granted subsidiary humanitarian protection), at the same time they also submitted that it fell within the first limb of Article 5 § 1 (f).", "They noted that practically all immigrants reaching Malta did not carry documents and thus ascertaining their identities upon entry was a lengthy process which was dependent on the cooperation of the migrants themselves. 133. The Government considered that the detention was carried out in good faith, as the centre at issue had been set up especially for that purpose, and the detention had fulfilled all the conditions indicated by the Court in Saadi v. the United Kingdom [GC] (no. 13229/03, ECHR 2008). They also considered that detention was based in law and was not discriminatory, nor was it applied across the board.", "Indeed they noted that vulnerable persons, including unaccompanied minors, women with children, pregnant women, elderly persons and disabled persons were not subject to detention, more than would be necessary until medical clearances were obtained. The Government claimed that since many persons alleged to pertain to such categories, procedures were in place to screen such requests accurately and expeditiously. As an example they submitted that in the first half of the year of 2012, out of 1, 065 persons who arrived in Malta irregularly, seventy‑five claimed to be minors. AWAS processed and determined all the cases and forty-six persons were issued with a care order. They further noted that age assessment of persons who were quite young was fast tracked as in such cases there was little difficulty in assessing the age.", "On the other hand with teenagers or alleged teenagers, close to the age of adulthood, the procedure involved more steps and thus inevitably took longer. 134. In the present case the applicant had only claimed to be a minor at a later stage, after having originally claimed she was twenty-six. The interviews in her respect were inconclusive, and it was only the bone density test which confirmed that she was not a minor – a decision to this effect was issued on 14 January 2013 and her asylum claim was decided in her favour two weeks later. The Government submitted that had the applicant not lied, her asylum claim would have been processed without the need to assess her age and she would surely have been released from detention earlier, given that, at the domestic level, subsidiary protection was regularly granted to Somalis.", "135. As to the detention following the subsidiary protection decision of Saturday 2 February 2013, the Government considered that since medical clearance needs to be given and accommodation found for the migrant, the lapse of five days before her release could not be considered incompatible with Article 5, particularly because such waiting time had been in the interest of the applicant. 2. The Court’s assessment (a) General principles 136. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty.", "The text of Article 5 makes it clear that the guarantees it contains apply to “everyone” (see Nada v. Switzerland [GC], no. 10593/08, § 224, ECHR 2012). Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in sub‑paragraph (f), permits the State to control the liberty of aliens in an immigration context.", "137. In Saadi (cited above, §§ 64-66) the Grand Chamber interpreted for the first time the meaning of the first limb of Article 5 § 1 (f), namely, “to prevent his effecting an unauthorised entry into the country”. It considered that until a State had “authorised” entry to the country, any entry was “unauthorised” and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be, without any distortion of language, to “prevent his effecting an unauthorised entry” (§ 65). However, detention had to be compatible with the overall purpose of Article 5, which was to safeguard the right to liberty and ensure that no‑one should be dispossessed of his or her liberty in an arbitrary fashion (ibid., § 66). 138.", "The question as to when the first limb of Article 5 ceases to apply, because the individual has been granted formal authorisation to enter or stay, is largely dependent on national law (see Suso Musa, cited above, § 97). 139. Under the sub-paragraphs of Article 5 § 1 any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub‑paragraphs (a)‑(f), be “lawful”. Where the “lawfulness” of detention is at issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness.", "It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67). 140. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate, bearing in mind that “the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”; and the length of the detention should not exceed that reasonably required for the purpose pursued (ibid., § 74; see also A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, and Louled Massoud, cited above, § 62). (b) Application to the present case 141.", "The Court observes that the applicant, an asylum seeker, was kept in detention for eight months and ten days, from the date of her arrival by boat on 27 May 2012 to 7 February 2013, the date of her release following a decision of 2 February 2013 to grant her subsidiary protection, awaiting the outcome of age assessment procedures and/or the outcome of her application for asylum, and subsequently her actual release. 142. It is noted that the applicant does not complain about the lawfulness and compliance with Article 5 of her detention between 27 May 2012 and a few days later (an unspecified day in June), when she applied for asylum (see paragraph 128 above, in primis). 143. The Court will assess compliance with Article 5 § 1 of the subsequent periods separately.", "(i) Pending her asylum claim ( June 2012 – 2 February 2013) 144. The Court observes that the applicant has been detained in accordance with the provisions of the Immigration Act (Articles 5 and 14(2), Chapter 217 of the Laws of Malta). While expressing reservations about the quality of all the applicable laws seen together in such context, the Court has already accepted that in cases similar to those of the applicant, the detention had a sufficiently clear legal basis, and that up to the decision on an asylum claim, such detention can be considered to fall under the first limb of Article 5 § 1 (f), namely to “prevent effecting an unauthorised entry” (see Suso Musa, cited above, § 99). There is no reason to find otherwise in the present case. 145.", "It remains to be determined whether the detention in the present case was not arbitrary, namely whether it was carried out in good faith; whether it was closely connected to the ground of detention relied on by the Government; whether the place and conditions of detention were appropriate and whether the length of the detention exceeded that reasonably required for the purpose pursued. 146. The Court has already noted a series of odd practices on the part of the domestic authorities when dealing with immigrant arrivals and subsequent detentions and it expressed its reservations as to the Government’s good faith in applying an across-the-board detention policy (save for specific vulnerable categories) and the by-passing of the voluntary departure procedure (see Suso Musa, cited above § 100) - reservations which it maintains, noting that the two practices persisted in the present case (see paragraphs 7 and 10 above). 147. Nevertheless, the focus of the applicant’s complaint concerns the fact that she was detained despite the fact that at the time she was an alleged minor.", "The Court considers that the necessity of detaining children in an immigration context must be very carefully considered by the national authorities. It is positive that in the Maltese context, when an individual is found to be a minor, the latter is no longer detained, and he or she is placed in a non-custodial residential facility, and that detention of minors should be no longer than what is absolutely necessary to determine their identification and health status (see paragraphs 31 and 36 above). An issue may however arise, inter alia, in respect of a State’s good faith, in so far as the determination of age may take an unreasonable length of time - indeed, a lapse of various months may also result in an individual reaching his or her majority pending an official determination. 148. The Court is, on the one hand, sensitive to the Government’s argument that younger looking individuals are fast tracked, and that the procedure is lengthier only in cases of persons close to adulthood, as well as their statement that only forty-six of seventy-five alleged minors (in 2012) were actually minors.", "On the other hand, the Court observes that in 2012, out of 1,065 arrivals only seventy-five individuals claimed to be minors, that is, less than 10 %. In this connection, the Court considers that despite the fact that “borderline” cases may require further assessment, the numbers of alleged minors per year put forward by the Government cannot justify a duration of around seven months to determine the applicant’s claim. Indeed, the Government have not explained why it was necessary for the applicant in the present case to wait for two months for her first age assessment interview (see paragraph 14 above) and a further two months to perform an X-ray on her wrist (see paragraph 15 above) following a second interview, and more than three months to have a decision following a standard medical test (see paragraph 14 above). 149. However, in the circumstances of the present case the Court cannot ignore that the applicant turned out to be an adult (compare Ahmade v. Greece, no.", "50520/09, § 79, 25 September 2012), and whether willingly or unwillingly, such false claims burden the system. Moreover, this result casts doubts on the applicant’s version of events concerning the first statement she made to the authorities about her age (see paragraph 11 above), and in any event there is no indication that the applicant’s first statement to the authorities had been erroneously written down by the authorities in bad faith (compare, Aarabi v. Greece, no. 39766/09, § 44, 2 April 2015). 150. As to whether the detention was closely connected to the ground of detention relied on, the Court notes that the purpose of the detention fell under the first limb of Article 5 § 1 (f) namely to prevent an unauthorised entry, and in practice to allow for the applicant’s asylum claim to be processed.", "It is true that the asylum claim could not be processed before the applicant’s age was determined, given that a number of procedural safeguards are attached to asylum claims lodged by minors. However, considering that age assessment is a preliminary step of an asylum assessment, as regrettable as the delay in determining the applicant’s age may have been in the present case, it cannot be said that the seven months of detention until her age was determined, as well as the subsequent two weeks until her asylum claim was verified, were not closely connected to the ground relied on. 151. As to the place and conditions of detention, the Court notes that the applicant in the present was an adult, and, as held above (paragraph 102), the conditions of detention in Lyster barracks did not amount to a violation of Article 3. 152.", "Further, the Court considers that despite the lack of procedural safeguards (as shown by the finding of a violation of Article 5 § 4, at paragraph 121 above) the overall duration of the applicant’s detention for the purposes of the first limb of the provision which amounted to a total of around eight months (June 2012 – 2 February 2013) is not unreasonable for the purpose pursued. 153. In conclusion, while the Court expresses reservations about the duration of such age-assessment procedures, bearing in mind all the above, the Court considers that in the present case, the applicant’s detention during the relevant period was in compliance with Article 5 § 1. Accordingly, there has been no violation of that provision. (ii) Following the acceptance of her asylum claim (2-7 February 2013) 154.", "The Court observes that the applicant remained in detention for five days following a decision granting her subsidiary protection. It reiterates that no deprivation of liberty will be lawful unless it falls within one of the grounds announced in Article 5 § 1. 155. Indeed the Government did not rely on any of the listed grounds, and thus, in principle, the detention during this period cannot be considered in compliance with the relevant provision. 156.", "Nevertheless, the Court observes that, in the criminal detention context, for the purposes of Article 5 § 1 (c), detention ceases to be justified “on the day on which the charge is determined” and that, consequently, detention after acquittal is no longer covered by that provision. However, “some delay in carrying out a decision to release a detainee is often inevitable, although it must be kept to a minimum” (see Labita v. Italy [GC], no. 26772/95, § 171, ECHR 2000‑IV). 157. Applying these principles mutatis mutandis to the immigration context, the Court could accept that the original detention falling under Article 5 § 1 (f), some delay may be envisaged in informing the applicant, as an immigration detainee, that she was granted subsidiary protection status and in actualising her release.", "However, in the present case the applicant was detained for five more days following that decision, and the reasons advanced by the Government cannot justify such duration. It has not been suggested that the applicant would have been homeless and destitute in those five days had it not been for the lodging proposed by the Government, nor can it be accepted that an individual is detained for five days, without any lawful ground, pending a medical clearance based on a simple X-ray. 158. Thus, this supplementary period of detention did not come within sub‑paragraph 1 (f), or any other sub-paragraph, of Article 5. 159.", "It follows that there has been a violation of Article 5 § 1 concerning the applicant’s detention following the determination of her asylum claim. IV. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 160. The applicant further complained under Article 5 § 2 that the Return Decision and Removal Order, provided to her in English, a language she did not understand, did not contain sufficient information enabling her to challenge her detention. The provision reads as follows: “ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” 161.", "The Government contested that argument. They submitted that the applicant had failed to exhaust domestic remedies. Without prejudice to the latter objection, they considered that in the absence of a remedy the complaint had been lodged out of six months from the date when the applicant was detained. 162. As to the merits, the Government submitted that the applicant was served with a removal order and a booklet containing information on her rights.", "In practice, detainees are also informed orally about this, when they are put on a bus following their arrival. Once they arrive at the detention centre they are orally informed by the staff of the detention centre about their detention and their rights in detention. The immigrants have access to interpreters as well as to NGOs, and also have an interview with the Commissioner for Refugees. 163. The applicant submitted that, at the time, she was not in a position to raise a complaint and institute legal proceedings due to the difficulties faced by detainees in pursuing such proceedings.", "164. The applicant submitted that the only documents she received concerning her detention, namely copies of the Return Decision and Removal Order, were standard forms, in English - a language she could not read or understand. Their content solely indicated the reasons why she had been declared a prohibited immigrant in terms of Article 5 of the Immigration Act and stated that in terms of the same provision she would remain in custody until her removal was affected. Thus, this information could not have enabled her, if she deemed fit to challenge the lawfulness of her detention. 165.", "The Court notes that in the absence of a remedy (see paragraph 121 above), in principle, the six-month time-limit must be calculated from the date of the omission complained of (see Aden Ahmed, cited above, § 69). 166. Even assuming that in the early stages of her detention the applicant was unable to contest such a measure because of her inability to understand the factual circumstances and her lack of knowledge of the English language, the Court observes that no specific reasons have been brought to the Court’s attention, explaining why she was able to bring proceedings around eight months after her arrival and subsequent detention, but not two months earlier, in order to comply with the six-month rule. 167. In such circumstances the Court considers that, the applicant having been informed of the reasons of her detention on 27 May 2012, and having lodged her application on 4 February 2013, the complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 and must be rejected pursuant to Article 35 § 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 168. 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 169. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage, as a result of the violations of Article 3 and 5 in the present case. 170.", "The Government submitted that the claim made by the applicant was excessive, and noted that such awards were made by the Court only in cases of excessive beatings by the authorities and other serious Article 3 violations. They considered that a sum of EUR 3,000 would suffice in respect of non‑pecuniary damage, given the circumstances of the case. 171. The Court notes that it has found a violation of Article 5 § 1 solely in relation to a five day period, as well as a violation of Article 5 § 4. In that light it considers it equitable to award the applicant EUR 4,000 in respect of non-pecuniary damage.", "B. Costs and expenses 172. The applicant also claimed EUR 4,000 for the costs and expenses incurred before the Court, representing sixty hours of legal work charged at an hourly rate of EUR 60, as well as clerical costs of EUR 400. 173. The Government submitted that such an award should not exceed EUR 2,000.", "174. 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 above criteria and the documents in its possession, as well as to the fact that most of the applicant’s complaints have not been upheld, the Court considers it reasonable to award the sum of EUR 1,500 covering costs for the proceedings before the Court. C. Default interest 175. 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.", "FOR THESE REASONS, THE COURT 1. Declares, unanimously, the complaint under Article 5 § 2 inadmissible and the remainder of the application admissible; 2. Holds, by six votes to one, that there has been no violation of Article 3 of the Convention concerning the applicant’s conditions of detention; 3. Holds, unanimously, that there has been a violation of Article 5 § 4 of the Convention as the applicant did not have a remedy fulfilling the requirement of this provision, by which to challenge the lawfulness of her detention; 4. Holds, unanimously, that there has been no violation of Article 5 § 1 of the Convention concerning the applicant’s detention pending her asylum claim; 5.", "Holds, unanimously, that there has been a violation of Article 5 § 1 of the Convention concerning the applicant’s detention in respect of the period following the decision on her asylum claim; 6. Holds, unanimously, (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts (i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand and five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoJosep CasadevallDeputy RegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Casadevall is annexed to this judgment.", "J.C.M. M.B. PARTLY DISSENTING OPINION OF JUDGE CASADEVALL (Translation) 1. Broadly speaking, for the same reasons as I mentioned in my partly dissenting opinion in the Story and Others v. Malta judgment (nos. 56854/13, 57005/13 and 57043/13, 29 October 2015), I am unable to follow the majority decision as regards the finding of no violation of Article 3 of the Convention in the present case.", "2. In my view the conditions of detention imposed on the applicant in the Lyster Barracks detention centre (Hermes block) are no better than those experienced by the applicants in the case of Story and Others in Division 3 of the Corradino Correctional Facility. Accordingly, having regard to the cumulative effect, I consider that those conditions of detention amount to humiliating and degrading treatment in breach of Article 3. 3. Once again, just as in the Story and Others judgment, the majority accept the existence of several shortcomings in the general conditions prevailing in the Lyster Barracks centre (see paragraphs 94 to 100 of the judgment), but on each examination minimise them to conclude (in paragraph 101) as follows: “ ...while remaining concerned about the lack of outdoor exercise, as well as the lack of heating and female staff...”, [the Court considers that] the cumulative effect did not reach the threshold of Article 3 of the Convention.", "4. I disagree. In my view it is time the Maltese State once and for all took the requisite action to ensure that detainees enjoy conditions of detention consonant with human dignity. [1] Becoming Vulnerable in Detention, National Report on Malta, July 2010, which may be accessed at: http://jrs.attmalta.org/wp-content/uploads/downloads/2011/02/Becoming-Vulnerable-in-Detention-MT.pdf last accessed on 20 June 2014. The Regional Report on the DEVAS project, published by JRS Europe in June 2010 may no longer be accessed online." ]

[ "FOURTH SECTION CASE OF KANIEWSKI v. POLAND (Application no. 38049/02) JUDGMENT STRASBOURG 8 November 2005 FINAL 08/02/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kaniewski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: SirNicolas Bratza, President,MrJ. Casadevall,MrG.", "Bonello,MrR. Maruste,MrS. Pavlovschi,MrL. Garlicki,MrJ. Borrego Borrego, judges,and Mr M. O’Boyle, Section Registrar, Having deliberated in private on 11 October 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 38049/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Andreas Kaniewski (“the applicant”), on 14 October 2002. 2. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and, subsequently, Ms S. Jaczewska, of the Ministry of Foreign Affairs. 3.", "On 17 December 2002 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1940 and lives in Köln, Germany.", "5. On 14 October 1993 the applicant lodged an application with the Warsaw Śródmieście Municipality (Urząd Gminy Warszawa Śródmieście). He asked for the right to the grant of so-called “temporary ownership” of the property (a plot of land and a house). 6. On 18 August 1995 the Warsaw Śródmieście Municipality referred the application to the Warsaw Municipality (Urząd Gminy Warszawa Centrum).", "7. On 13 November 1995 the applicant complained to the Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) that the Mayor of Warsaw (Prezydent Warszawy) had failed to handle his case within the prescribed time-limit. 8. On 28 December 1995 the Board of Appeal ordered the Mayor to deal with the applicant’s application within a month. 9.", "On 29 March 1996 the Mayor stayed the proceedings. 10. The Board of Appeal quashed that decision on 17 March 1997. 11. On 20 August 1998 the applicant complained to the Self-Government Board of Appeal about inactivity on the part of the Mayor of Warsaw.", "12. On 17 September 1998 the Mayor issued a decision. He refused to grant the applicant the right he sought. In consequence, the applicant withdrew his complaint of 20 August 1998. 13.", "On 20 April 1999 the Board of Appeal quashed the Mayor’s decision and remitted the case. 14. The Mayor upheld his original decision on 30 November 1999. 15. On the same day the applicant appealed to the Board of Appeal.", "16. The Board of Appeal quashed the Mayor’s decision on 7 June 2000. 17. On 8 January 2002 the applicant complained to the Self-Government Board of Appeal that the Mayor had failed to handle his case within the prescribed time-limit. 18.", "On 10 June 2002 the Board ordered the Mayor to deal with the case by 30 June 2002. 19. On 24 September 2003 the Mayor of Warsaw refused to grant the applicant temporary ownership of the property. 20. The Self-Government Board of Appeal quashed that decision and remitted the case on 29 April 2004.", "21. The proceedings are still pending. 22. Article 35 of the Code of Administrative Procedure lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit.", "Pursuant to Article 37 § 1, if the case has not been dealt with within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings may lodge a complaint to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for examining the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future. 23. Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge a complaint with the Supreme Administrative Court about the fact that an administrative authority had failed to issue a decision.", "24. On 1 October 1995, when the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed. 25. Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints about inactivity on the part of an authority obliged to issue an administrative decision. 26.", "Section 26 of the Act provided: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” 27. Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31, impose a fine on it and could itself give a ruling on the right or obligation in question. 28. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004.", "Section 3 § 2 of the 2002 Act contains provisions analogous to Section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. He relied on Articles 6 § 1 and 13 of the Convention. Article 6 § 1 reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 30. The Government contested that argument. 31.", "The period to be taken into consideration began on 14 October 1993 and has not yet ended. It has thus lasted approximately 12 years for 6 levels of jurisdiction. 1. The Government’s plea on inadmissibility on the ground of non-exhaustion of domestic remedies 32. The Government submitted that the applicant had not exhausted remedies available under Polish law.", "They maintained that he had not lodged a complaint about inactivity on the part of the Mayor of Warsaw with the Supreme Administrative Court. They recalled further that, since 18 December 2001, the applicant had the possibility to lodge a claim for compensation for damages suffered due to the excessive length of proceedings with the Polish civil courts. 33. The applicant generally contested the Government’s arguments. 34.", "The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. 35. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp.", "2275–76, §§ 51–52). 36. The Court notes that the applicant several times lodged complaints about inactivity on the part of the Mayor of Warsaw with the Self-Government Board of Appeal. The Board of Appeal twice found the complaints well-founded and ordered the Mayor to deal with the case. One such complaint was withdrawn by the applicant, as the Mayor issued the decision before it was examined by the Board of Appeal.", "The remedy the applicant used was therefore adequate and sufficient to afford him redress in respect of the alleged breach. In consequence, the Court does not consider that the applicant should have lodged a further complaint about inactivity with the Supreme Administrative Court in order to fulfil his obligation under Article 35 § 1. 37. The Court also reiterates that, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see, mutatis mutandis, H.D. v. Poland (dec.), no.", "33310/96, 7 June 2001). 38. The Court considers therefore that, having exhausted the possibilities available to him within the administrative procedure system, the applicant was not required to embark on another attempt to obtain redress by bringing a civil action for compensation. 39. Accordingly, the Court concludes that, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies.", "For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 2. Substance of the complaint 40. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds.", "It must therefore be declared admissible. B. Merits 41. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "42. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 43. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 44. The applicant further complained that the length of the proceedings complained of had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No.", "1. 45. The Government contested that argument. 46. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.", "47. Having regard to its finding under Article 6 § 1 (see paragraph 33 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Kroenitz v. Poland, no. 77746/01, § 37, 25 February 2003). III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed restitution of property in question or equivalent compensation in lieu in respect of pecuniary and non-pecuniary damage. 50.", "The Government contested the claim. 51. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 8000 under that head.", "B. Costs and expenses 52. The applicant also claimed EUR 24,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 53. The Government contested the claim.", "54. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 under this head. C. Default interest 55. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that it is not necessary to examine the complaint under Article 1 of Protocol No. 1; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 8000 (eight thousand euros) in respect of non-pecuniary damage; (ii) EUR 500 (five hundred euros) in respect of costs and expenses; (iii) any tax that may be chargeable on the above amounts; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 8 November 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O’BoyleNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF KÁROLY v. HUNGARY (Application no. 58887/00) JUDGMENT STRASBOURG 2 December 2003 FINAL 24/03/2004 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Károly v. Hungary, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrGaukur Jörundsson,MrL.", "Loucaides,MrC. Bîrsan,MrM. Ugrekhelidze,MrsA. Mularoni, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 13 November 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "58887/00) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Ferenc György Károly (“the applicant”), on 3 January 2000. 2. The Hungarian Government (“the Government”) were represented by their Agent, Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. 3. On 5 March 2002 the Court decided to communicate the complaint concerning the length of the proceedings to the Government.", "Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS 4. The applicant was born in 1956 and lives in Kecskemét, Hungary. 5. The applicant was dismissed from his employment.", "On 28 August 1995 the applicant brought an action before the Budapest Labour Court claiming severance pay. On 15 November 1995 the Labour Court held a hearing. On that occasion the applicant modified his action and also requested that his dismissal be annulled. 6. On 6 February 1996 the Labour Court dismissed the applicant's request to be reinstated in his employment, holding that his claim in this connection had been submitted outside the statutory time-limit.", "7. On 19 June 1996 the Budapest Regional Court, sitting as a second instance, dismissed the applicant's appeal against the partial decision of 6 February 1996. On 12 November 1996 the Supreme Court dismissed his petition for review. 8. As regards the remainder of the action, the Budapest Labour Court held further hearings on 27 May and 1 July 1998.", "On the latter date it awarded the applicant in the region of 130,000 Hungarian forints plus accrued interest by way of severance pay and outstanding wages. 9. On appeal, the Budapest Regional Court held hearings on 15 January, 14 April and 23 June 1999. 10. On 2 July 1999 the Regional Court increased the award in a partial judgment.", "On 2 September 1999 the applicant filed a petition for review with the Supreme Court. On 7 October 1999 the Supreme Court ordered that the petition be completed. On 25 February 2000 it appointed a legal-aid lawyer for the applicant. On 3 January 2001 the Supreme Court dismissed, in a partial decision, the applicant's petition for review. This decision was served on the applicant on 7 February 2001.", "11. Meanwhile, on 22 September 1999 the Regional Court suspended the proceedings conducted in respect of some claims still outstanding, pending the review proceedings. 12. Subsequent to the decision of 3 January 2001, the Regional Court resumed the proceedings. A hearing scheduled for June 2001 was adjourned as the notification sent to the applicant had been returned to the court undelivered.", "The Regional Court's further enquiry about the applicant's address was unsuccessful. Consequently, on 12 September 2001 the court suspended the proceedings. On 12 March 2002 the proceedings were discontinued, pursuant to section 137 § 1 (c) of the Code of Civil Procedure, as a six months' period had elapsed from the date of the order suspending the case. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS 13.", "The applicant complained that the length of the proceedings - especially in the period between 28 August 1995 and 3 January 2001 - had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” 14. The Government contested that argument. 15. The period to be taken into consideration began on 28 August 1995 and ended on 12 March 2002. It thus lasted six years, six months and two weeks.", "A. Admissibility 16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.", "Merits 17. The Government argued that the proceedings had been conducted before three levels of jurisdiction without any periods of delay, save between 12 November 1996 and 27 May 1998 when an administrative lapse had resulted in a period of inactivity. They also pointed out that some delay had occurred in the proceedings after 3 January 2001 due to the applicant's failure to provide the courts with his address. 18. The applicant contested this argument.", "He stressed that progress in the case, in particular between 28 August 1995, the date on which he filed the action, and 3 January 2001, the date on which the Supreme Court dismissed his petition for review, had been unreasonably slow. 19. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 20.", "The Court considers that the case was not particularly difficult to determine, either on the facts or on the law to be applied. 21. As to the conduct of the judicial authorities, the Court observes, in line with the Government's submission, that there was a period of inactivity between 12 November 1996 and 27 May 1998 due to an administrative mishap. This period of delay is to be imputed to the State. 22.", "As to the conduct of the applicant, the Court observes that, subsequent to the resumption of the proceedings on 3 January 2001, no communication from the Regional Court could be served on the applicant. As a consequence, the proceedings first had to be suspended and then discontinued on 12 March 2002. For the Court, this futile delay in the procedure lasting more than ten months is imputable to the applicant. 23. Having regard to the overall length involved and in particular to the period of inactivity of one and a half years for which the domestic courts were responsible, and given that employment litigation generally requires particular diligence on the part of the domestic courts (see the Obermeier v. Austria judgment of 28 June 1990, Series A no.", "179, pp. 23-24, § 72; the Caleffi v. Italy judgment of 24 May 1991, Series A no. 206-B), the Court concludes that the applicant's case was not determined within a reasonable time. There has accordingly been a violation of Article 6 § 1 of the Convention. II.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE FAIRNESS OF THE PROCEEDINGS Admissibility 24. The applicant also complained that the decisions given by the domestic courts in the above proceedings were wrong. He invoked Articles 6, 13 and 14 of the Convention. The Court considers that there is nothing in the case-file indicating that the courts hearing the case lacked impartiality or that the proceedings were otherwise unfair. Moreover, there is no appearance of any violation of the applicant's rights under Articles 13 and 14 of the Convention either.", "It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 26.", "The applicant claimed 16,453,234 Hungarian forints (HUF) in respect of pecuniary damage and HUF 8,000,000 by way of non-pecuniary damage. 27. The Government submitted that the applicant's claims were excessive and argued that any compensation to be awarded should be assessed in the light of the relevant case-law of the Court in cases against Hungary. 28. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "However, it awards the applicant 3,700 euros (EUR) in respect of non-pecuniary damage, having regard to what was at stake for him in the proceedings and to the fact that he can reasonably be considered to have suffered frustration on account of the length of time taken to conclude the litigation. B. Costs and expenses 29. The applicant also claimed HUF 48,291 for the costs and expenses incurred in the proceedings before the domestic authorities and the Court. 30.", "According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 200 under this head. C. Default interest 31. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 3,700 (three thousand seven hundred euros) in respect of non-pecuniary damage; (ii) EUR 200 (two hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on that amount; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 2 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "S. Dollé J.-P. CostaRegistrarPresident" ]

[ "FOURTH SECTION CASE OF DEMETRIOU v. TURKEY (Application no. 16158/90) JUDGMENT (Strike out) STRASBOURG 22 April 2008 FINAL 22/07/2008 This judgment may be subject to editorial revision. In the case of Demetriou v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Stanislav Pavlovschi,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä, judges,Metin A. Hakki, ad hoc judge, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 1 April 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 16158/90) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Afroula Via Demetriou (“the applicant”), on 26 January 1990.", "2. The applicant was represented by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent. 3. The applicant complained that she had been unable to access or use her property in the northern part of Cyprus after the 1974 Turkish invasion, invoking Articles 8 and 13 of the Convention and Article 1 of Protocol No.", "1 to the Convention. 4. Following communication of the application to the Government by the Commission, the case was transferred to the Court on 1 November 1998 by virtue of Article 5 § 2 of Protocol No. 11 to the Convention. It was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).", "It was subsequently transferred to the Fourth Section of the Court. 5. On 24 August 1999 the Court, having noted that the respondent Government had not submitted any observations within the relevant time-limit, declared the application admissible. 6. The Government of Cyprus were informed of their right to take part in the proceedings (Article 36 of the Convention and Rule 44 § 1).", "7. On 13 October 1999 the Government of Cyprus informed the Court that they wished to avail themselves of this right. 8. On 3 November 1999 the respondent Government submitted observations on the merits of the case. On 15 November 1999 the Cypriot Government submitted observations on the merits of the case.", "9. On 19 December 1999, the applicant’s lawyer informed the Registry that the applicant, then 79 years’ old, no longer wished to pursue her application. 10. On 2 October 2007, Mr Türmen, the judge elected in respect of Turkey having withdrawn from sitting (Rule 28), the Government appointed Mr Metin Hakki as the ad hoc judge in his place (Article 27 § 2 of the Convention and Rule 29 § 1). 11.", "On 11 January 2007, the applicant’s lawyer confirmed that the applicant wished to withdraw her application. THE FACTS 12. The applicant was born in 1920. 13. The applicant was the owner of a fully furnished house, which she used as a secondary residence, in the District of Kyrenia.", "As a result of the 1974 Turkish invasion she claimed that she had been deprived of her property rights, her property being located in the area which was under the occupation and the overall control of the Turkish military authorities. The latter had prevented her from having access to and the use or possession of her house and property. She had been continuously prevented from entering the northern part of Cyprus because of her Greek-Cypriot origin. Moreover, the applicant stated that her house was currently occupied by officers and/or other members of the Turkish military forces. THE LAW 14.", "On 11 January 2007 the applicant’s representative confirmed to the Court that the applicant no longer wished to proceed with her application. 15. The Court takes note of this development and, bearing in mind the existence of a number of cases pending before it raising similar issues, considers that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue the examination of the application (Article 37 § 1 (c) of the Convention). 16. Accordingly, the case should be struck out of the list.", "FOR THESE REASONS, THE COURT UNANIMOUSLY Decides to strike the application out of its list of cases. Done in English, and notified in writing on 22 April 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF MIKAYIL MAMMADOV v. AZERBAIJAN (Application no. 4762/05) JUDGMENT STRASBOURG 17 December 2009 FINAL 17/03/2010 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mikayil Mammadov v. Azerbaijan, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, President,Nina Vajić,Elisabeth Steiner,Khanlar Hajiyev,Dean Spielmann,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar, Having deliberated in private on 26 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "4762/05) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Mikayil Sattar oglu Mammadov (Mikayıl Səttar oğlu Məmmədov – “the applicant”), on 27 December 2004. 2. The applicant, who had been granted legal aid, was represented by Mr A.G. Mustafayev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3.", "The applicant alleged, relying on Article 2 of the Convention in particular, that the domestic authorities were responsible for the death of his wife. He also alleged that the authorities had failed to effectively investigate the circumstances of his wife's death. 4. On 15 May 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961 in Gubadly and currently lives in Sumgayit. A. The background 6.", "The applicant and his family are internally displaced persons from Gubadly. In 1993, during the occupation of the region by Armenian military forces, they fled their permanent place of residence and came to Sumgayit. 7. After their flight from Gubadly, the applicant's family of six (himself, his wife, three children and the applicant's mother-in-law) resided temporarily in various places in Sumgayit. Immediately prior to the events outlined below they lived in a room in a State-owned hostel.", "8. From 17 June to 5 July 1999 the applicant's wife, Chichek Mammadova, underwent in-patient treatment in the Sumgayit City Emergency Hospital with a diagnosis of “closed craniocerebral injury, brain concussion; contusion of soft tissues of the crown of the head; hysterical psychosis”. 9. In late 2003 the applicant discovered that there were three vacant rooms in an old administrative building that belonged to the Sumgayit City Military Commissariat (the army recruitment office), which, however, no longer occupied the building. Part of the building was occupied by an association of war veterans, but the rooms that the applicant was interested in were abandoned and in a state of neglect.", "The rooms were located in auxiliary premises which had a separate entrance from the rear side of the building. The applicant occupied these rooms and conducted substantial repair work there for three months. According to him, the other occupants of the building were aware of his activities but did not object to them. Likewise, according to the applicant, there were no objections by any public authorities to the repair works carried out by him. 10.", "After completing the repair works, at the end of 2003 the applicant left his hostel room and moved into the new dwelling together with his family. B. Eviction of the applicant's family and his wife's death 11. On 26 March 2004 two officials (E.G. and Y.A.) of the Sumgayit City Executive Authority (“the SCEA”), an employee of the local housing maintenance and utilities board (K.A.)", "and a number of police officers arrived in the applicant's new dwelling. They had no court order for his eviction. 12. At an unspecified time after the arrival of the above-mentioned officials, the applicant's wife, Chichek Mammadova, poured some kerosene on herself and ignited it, apparently in protest at what she perceived as the authorities' intention to evict her family. It appears that at least one of the police officers helped put out the fire on her body, using a blanket he found inside the applicant's home.", "Chichek Mammadova's brother, who arrived slightly later, took her to hospital by taxi. 13. Following this incident, the police loaded the possessions of the applicant's family onto a lorry and transported them back to the hostel where the applicant's family had previously resided. 14. The applicant's wife suffered multiple second- and third-degree burns affecting 50% of the body surface.", "On 30 March 2004 she died in hospital of complications resulting from her injuries. The results of the autopsy released on 2 April 2004 confirmed that the death had been caused by the extensive burns to her body surface. 1. The applicant's version of the events 15. According to the applicant, prior to 26 March 2004 he was summoned several times to meet the SCEA officials, who orally demanded him to vacate the rooms in the old Commissariat building and even asked him for a bribe in order to allow him to stay there.", "He refused their demands. 16. On 26 March 2004 E.G., Y.A. and a large number of police officers arrived in the applicant's new dwelling and demanded that he and his family immediately vacate the premises. The applicant estimated the total number of police officers at around twenty-five to thirty, noting that most of them were equipped with batons.", "When the applicant and his family members refused, the police used force on the applicant and his mother-in-law. 17. At this time Chichek Mammadova experienced a state of shock and psychological anxiety. She poured some kerosene on herself and threatened to set fire to herself if the police officers did not leave immediately. However, the SCEA officials and police officers did not take her threats seriously.", "E.G. even offered her a box of matches, mockingly encouraging her to keep her word and set fire to herself. 18. At that moment, the applicant was outside trying to help one of his children, who had fainted a few moments earlier from fright. Therefore, the applicant could not immediately rescue his wife.", "According to the applicant, none of the police officers made an attempt to rescue her, because they were all busy carrying the applicant's possessions and loading them onto a lorry. 19. Only Chichek Mammadova's sister, who was also in the vicinity, came to her rescue and extinguished the fire. Only one police officer offered some belated assistance. By this time, Chichek Mammadova had already suffered serious burns.", "Her brother, who arrived shortly after the incident, took her to hospital by taxi. 2. The Government's version of the events 20. According to the Government, at 11 a.m. on 26 March 2004 two SCEA officials, accompanied by five police officers, visited the premises occupied by the applicant's family. The aim of the visit was merely to explain to the applicant that his family was occupying these premises illegally.", "The applicant immediately left, together with a child of his, and went to a post office to send a complaint against the SCEA officials and the police. After the applicant had left, his wife supposed that her family would be evicted by force. She became anxious and set fire to herself in protest. None of the State officials present had provoked her to do so. A few minutes later her close relatives took her to hospital.", "21. Following this, the officials decided, on the spot, to move the applicant's family's belongings back to the hostel where they had previously resided. C. Inquiry by the Sumgayit City Prosecutor's Office 22. An investigator of the Sumgayit City Prosecutor's Office carried out a preliminary inquiry into the circumstances of Chichek Mammadova's death. 23.", "It appears that the investigator questioned a number of witnesses, including the applicant, his mother-in-law, his sister-in-law, the municipal employee K.A., the SCEA officials E.G. and Y.A., and seven police officers (J.M., C.V., N.A., E.N., N.G., N.I. and S.S.) (see summaries of the relevant witness testimonies in section F. below). 24. By a decision of 14 May 2004 an investigator of the Sumgayit City Prosecutor's Office decided not to institute criminal proceedings in connection with the death of the applicant's wife.", "25. Based on the witness testimonies, the investigator concluded that there was no proof supporting the applicant's allegations that E.G. and Y.A. had entered the applicant's dwelling, that E.G. had offered matches to Chichek Mammadova, that E.G.", "had ever asked the applicant for a bribe, or that any police officers had used force against Chichek Mammadova. As there were no indications that any third persons had been in any way responsible for the fact that the applicant's wife had attempted suicide, there were no grounds to institute criminal proceedings. 26. Following this decision, the applicant sent a number of letters to the Sumgayit City Prosecutor's Office asking for a new investigation into the circumstances of his wife's death with a view to determining the responsibility of the SCEA officials and police officers involved in the incident. The Sumgayit City Prosecutor's Office replied, with similarly worded letters, on 15 July, 20 July, 3 September and 28 September 2004.", "It was noted in these letters that Chichek Mammadova's death had been suicide and that the preliminary inquiry could not establish any responsibility on the part of the State officials in her death. It was also noted, however, that: “... during the investigation into the circumstances of the death of Chichek [Mammadova], it was revealed that officials of the City Executive Authority and certain officers of the Sumgayit City Police Office had committed a number of errors [in performing their official duties. The matter has been referred] to the senior management of the City Executive Authority and the City Police Office with a view to eliminating such errors and ensuring that they are not repeated in the future, as well as taking relevant measures against the persons who have committed these errors. ... ... moreover, a report was submitted to the Sumgayit City Police Office in respect of the officers of the Sumgayit City Police Office who exceeded their authority by participating, without a relevant court order, in an operation to evict you from the building where you had settled illegally; the officers responsible for the misconduct have been punished under the disciplinary procedure.” 27. In March 2005 the applicant lodged a complaint with the Sumgayit City Court against the decision of the Sumgayit City Prosecutor's Office of 14 May 2004.", "On 1 April 2005 the Sumgayit City Court dismissed the applicant's complaint and upheld the decision of 14 May 2004. It noted that the inquiry did not reveal any evidence that a criminal offence had been committed and that, therefore, the decision of 14 May 2004 was lawful. D. Inquiry by the Binagadi District Prosecutor's Office 28. On 25 May 2005 the Prosecutor General quashed the Sumgayit City Prosecutor's Office's decision of 14 May 2004 on the refusal to institute criminal proceedings. On 14 June 2005 the case was forwarded to the Binagadi District Prosecutor's Office for an additional inquiry into the circumstances of the case.", "29. In the period from 24 June to 12 August 2005, the investigator of the Binagadi District Prosecutor's Office questioned a number of witnesses (mostly the same ones as those who had been questioned before) and obtained written testimonies from them (see section F. below). 30. On 20 July 2005 the investigator requested an expert opinion on Chichek Mammadova's mental condition prior to her death and how it might have affected her actions leading to the suicide. In an expert opinion of 10 August 2005 an expert psychiatrist, having studied Chichek Mammadova's medical records and comments by people who had known her, concluded as follows: “No symptoms of a psychogenic-depressive reaction potentially causing her suicide can be observed in Chichek Mammadova's personality and mental traits.", "However, in the period preceding Chichek Mammadova's death, she had experienced a state of emotional stress of a degree capable of influencing her behaviour.” 31. On 17 August 2005 the investigator issued a decision refusing to institute criminal proceedings. The decision stated, inter alia: “[According to the expert opinion of 10 August 2005,] the act of self-immolation by Chichek Mammadova was carried out in an attempt to prevent [her family's eviction]. During the incident, she found herself in the extreme circumstances of facing eviction from the rooms that [her family] had occupied, and reacted inadequately by self‑immolating in an ostentatious manner, having decided that it would attract the attention of those who were around her, evoke in them feelings of compassion towards herself, and help her resolve the conflict situation she encountered. In the period preceding her death, Chichek Mammadova had experienced emotional stress of a degree that could have influenced her subsequent actions.", "... the additional inquiry revealed that no other person had incited Chichek Mammadova to commit suicide by means of either ill-treating her, debasing her dignity or intimidating her. The claims of [the applicant] have not been confirmed during the additional inquiry ... It was established that the [SCEA and police] officials had carried out their official duties in a lawful manner, had given lawful instructions and had not committed any breaches of law when implementing those instructions, and that there had been no corpus delicti in [their] actions. Therefore ... the institution of criminal proceedings should be refused.” 32. It appears that, following this decision, the applicant sent a number of letters to the Prosecutor General's Office, complaining that the investigation into the circumstances of his wife's death had been inadequate.", "In letters of 22 September and 10 October 2005 the Prosecutor General's Office responded that the inquiry by the Binagadi District Prosecutor's Office did not reveal any criminal elements in the actions of the State officials and that the applicant could challenge the decision of the Binagadi District Prosecutor's Office of 17 August 2005 in the courts. The applicant did not lodge a judicial complaint. E. Institution of criminal proceedings and criminal investigation 33. On 7 June 2006 the First Deputy to the Prosecutor General quashed the decision of the Binagadi District Prosecutor's Office of 17 August 2005 on the refusal to institute criminal proceedings. Having regard to the contradictory testimonies of key witnesses and indications of possible breaches of law by the SCEA and police officials, the First Deputy to the Prosecutor General found that the inquiry had been incomplete and instituted criminal proceedings under Article 125 (incitement to suicide) of the Criminal Code.", "The Binagadi District Prosecutor's Office was instructed to carry out the investigation. 34. On 10 June 2006 the applicant was given the procedural status of a “legal successor to a victim of crime”. In June and July 2006 the applicant submitted to the investigator a number of petitions requesting him, inter alia, to summon certain additional witnesses and to remove certain SCEA and police officials from their official posts during the investigation period. On 1 August 2006 the investigator rejected these petitions.", "35. It appears that the investigator again questioned mostly the same group of witnesses who had been questioned before (see paragraphs 23 and 29 above and section F. below). 36. On 7 September 2006 the three-month investigation period was extended for another two months. 37.", "On 1 October 2006 the investigation was suspended. On 14 November 2006 it was resumed. No documents are available in the case file in respect of these procedural events. 38. On 15 November 2006 the investigator from the Binagadi District Prosecutor's Office again suspended the investigation, owing to the inability “to determine the perpetrator of the criminal offence” of incitement to suicide.", "39. The applicant lodged a judicial complaint against the investigator's decision of 15 November 2006 to suspend the investigation. On 19 March 2007 the Binagadi District Court quashed the impugned decision and instructed the Binagadi District Prosecutor's Office to resume the investigation. The court noted, inter alia: “It appears from the material in the case file that the criminal investigation has not been full and comprehensive, and there was no basis for suspending the criminal proceedings as no face-to-face confrontations between witnesses have been held, and it has not been determined whether there were lawful grounds for the [SCEA and police] officials to enter the residential premises and remove the victim's belongings from there, whether the police officers indeed went to the scene of the incident with the aim of carrying out prophylactic measures, whether such prophylactic measures were lawful, whether any physical force were used against the residents of the premises, and whether the [State officials] at the scene of the incident abused their official authority.” 40. On 9 April 2007 the investigation was resumed.", "However, on 25 April 2007 the investigator of the Binagadi District Prosecutor's Office decided to suspend the investigation again. In his decision he noted that, after the resumption of the investigation on 9 April 2007, “a number of investigative steps ha[d] been carried out”; however, it was still impossible to determine the perpetrator of the offence of incitement to suicide. The nature of such investigative acts was unspecified. 41. The applicant lodged a judicial complaint against the investigator's decision of 25 April 2007 to suspend the investigation.", "On 7 June 2007 the Binagadi District Court dismissed the applicant's complaint and upheld the investigator's decision. On 4 July 2007 the Court of Appeal upheld the Binagadi District Court's decision. 42. On 16 September 2008 the investigator of the Binagadi District Prosecutor's Office issued a decision terminating the criminal proceedings on account of the absence of corpus delicti for the purposes of Article 125 of the Criminal Code in the actions of any of the persons involved in the incident resulting in the applicant's wife's self-immolation. The decision contained, inter alia, the following findings: “From 5 March 2004 the [SCEA] became aware of the fact that [the applicant and his family] had changed, of their own free will [without authorisation], their place of residence and were illegally residing in a State-owned non-residential building.", "Despite several early warnings given by [SCEA and police] officials, [the applicant and his family] continued to illegally reside in those non-residential premises. At around 11 a.m. on 26 March 2004, pursuant to an instruction by the [SCEA's] senior administration, [SCEA officials E.G. and Y.A. ], police officers [N.G., E.N., N.A., C.V.], and the Deputy Head of the Sumgayit City Police Office J.M. went ... to the above address to have a prophylactic conversation with [the applicant and his family].", "During the prophylactic conversation ... Chichek Mammadova became anxious and, having presumed that [her family] would be evicted from the premises, poured kerosene on herself and ignited it; a state of tension ensued at the scene of the incident; Chichek Mammadova was taken to hospital by her relatives; her husband [the applicant] had left the scene prior to Chichek Mammadova's self-immolation to send a complaint by telegram; as a result, a process of eviction was started in accordance with an instruction given on the spot by [E.G. and Y.A. ]; the police officers loaded [the applicant's] belongings onto a lorry and transported them to [the hostel where the applicant's family had previously lived] and delivered them to [R.N. ], the superintendent of the hostel. It has been determined that the senior administration of [the SCEA] sent [E.G.", "and Y.A.] with the purpose of carrying out prophylactic measures in respect of the internally displaced persons who were illegally occupying the State-owned non‑residential premises in order to ensure that [the latter] vacated the premises voluntarily, and that the senior management of [the SCEA] did not instruct its officials to evict the internally displaced persons by force. However, after [the applicant's] wife Chichek Mammadova, who was suffering from a mental illness, had set fire to herself, [E.G. and Y.A.] instructed the police officers to move out the [applicant's] belongings, organised the transportation of those belongings to the hostel..., delivered them to the superintendent [R.N.]", "and signed a deed of delivery. ... It has been determined that, pursuant to an oral instruction from [the SCEA], the police officers were sent to the above-mentioned address by the administration of the Sumgayit City Police Office in order to participate in carrying out the prophylactic measures and, after the act of self-immolation by Chichek Mammadova, received an instruction directly from [E.G. and Y.A.] to move [the applicant's] belongings.", "[Summaries of witness testimonies and forensic evidence follow.] Pursuant to Article 5 of the Law on Social Protection of Internally Displaced Persons and Individuals Equated to Them of 21 May 1999, the relevant local executive authorities are responsible for temporary housing of internally displaced persons. Internally displaced persons may be allowed to settle temporarily on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation ... Pursuant to clause 4 of the Regulations on Resettlement of Internally Displaced Persons to Other Accommodation, adopted in Cabinet of Ministers Resolution No. 200 of 24 December 1999, in cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the local executive authorities must provide the former with other suitable accommodation.", "According to a statement received from the Sumgayit City Court, there has been no judicial order for the eviction of [the applicant] from the premises where he had settled. [A summary of the expert opinion on Chichek Mammadova's mental state follows.] The investigation did not reveal evidence in support of [the applicant's] allegations that [the SCEA] officials demanded a bribe from him, abused or exceeded their authority, or unlawfully evicted [the applicant's family], or that the police officers ... abused or exceeded their authority, or used force against [the applicant] and his family members or his mother-in-law. The decisions and actions of [the SCEA and police] officials taken in connection with the premises illegally occupied [by the applicant's family] were lawful and did not transgress the limits specified by the legislation [in force]. The actions of [the SCEA and police] officials did not contain any elements of offences under Articles 308, 309, 311 and 125 of the Criminal Code or any other criminal offences.", "Moreover, the investigation revealed no indications that Chichek Mammadova was driven to commit suicide by way of ill-treatment debasing her dignity or threatening her, and found no person guilty of such acts. No elements of an offence under Article 125 of the Criminal Code have been established in the actions of any person [in connection with this incident].” F. Witness testimonies 43. Below are summaries of testimonies of the witnesses questioned at various times by the investigation authorities in the course of the above‑mentioned proceedings. The summaries have been derived either from copies of the witness depositions submitted by the Government in their observations or from the texts of the investigation authorities' decisions, or both. It appears that a number of the witnesses were questioned more than once; in such cases, the summary includes the content of all their testimonies.", "1. The applicant, his mother-in-law and his sister-in-law 44. The applicant testified that, prior to 26 March 2004, he had been called to the SCEA several times and had been demanded to vacate the premises in the Sumgayit Commissariat. On one occasion, he had been accompanied to the SCEA by a police officer, C.V. The applicant claimed that, during these meetings with the SCEA officials, he had been asked for a bribe.", "45. At 11 a.m. on 26 March 2004 K.A. knocked on the applicant's door and did not tell him the real reason for her visit when he asked. When he opened the door, K.A. entered the dwelling with E.G., followed by police officers N.I., S.S. and C.V. (whom the applicant identified by their first names), and several other police officers unknown to him.", "A “large number” of other unknown police officers remained outside. N.I., S.S. and C.V. used force on the applicant immediately after they had gone inside. The applicant's wife, who witnessed this, asked the police officers why they were doing this and threatened to set fire to herself. In reply, E.G. mockingly challenged her to do so.", "At that moment, the applicant was able to escape from the police officers and go outside in search of a phone to call his relatives for assistance. When he came back, he saw a burnt blanket at the entrance of the dwelling and found out that his wife had performed self‑immolation and had been taken to hospital. He went to the hospital to see his wife. From the hospital he went to a post office to send telegrams to various authorities complaining about the incident. When he came back to his dwelling from the post office, he saw that his possessions had been removed.", "46. The testimony of the applicant's mother-in-law mostly corroborated the applicant's statements. Unlike him, she was inside the dwelling during the entire incident. She estimated that there had been around twenty to twenty-five officials and police officers during the incident and noted that they all had entered the dwelling. She also noted that, at one point, police officer N.I.", "had used force on the applicant by twisting his arms. She further submitted that E.G. had gone inside the dwelling and provoked Chichek Mammadova by offering her a box of matches. Following this, Chichek went into another room and emerged from it burning. One of the police officers helped put out the fire by throwing a blanket and a carpet on Chichek Mammadova.", "47. The applicant's sister-in-law was in accord with her mother's testimony. 2. E.G., an SCEA official 48. E.G.", "stated that the applicant and his family members had been notified earlier about the illegality of their actions and had been asked to vacate their dwelling in the Commissariat building. On 25 March 2004 S.R., a head of department at the SCEA, instructed him and another colleague of his (F.K.) to participate, as “observers” from the SCEA, in the “prophylactic measures” that would be taken the next day in connection with the applicant's illegal occupation of part of the Commissariat building. On 26 March 2004 he went to that address together with Y.A., while F.K. joined them much later.", "There were already an unspecified number of police officers there. An unspecified number of unidentified relatives and friends of the applicant were also there. The latter verbally insulted him and Y.A. The Deputy Head of the Sumgayit City Police Office (J.M.) was also there and spoke to the applicant about vacating the premises.", "49. E.G. specified that K.A. had knocked on the applicant's door and, immediately after it had been opened, several policemen had gone inside and spoken to the applicant. E.G.", "himself was standing, together with Y.A., outside the building, about 40-50 metres away from the entrance to the applicant's dwelling. “A little while later”, he heard screams from inside the applicant's dwelling and saw the police officers bring out Chichek Mammadova, who was badly burnt and was then taken to hospital. The applicant was not there at this time, as he had gone away somewhere. After Chichek Mammadova had been driven away, the premises occupied by the applicant and his possessions were left unattended by his family members, so they were loaded onto a lorry and taken to a more “secure place”, that is, the hostel where the applicant had lived before. 50.", "E.G. denied speaking to the applicant prior to the incident and asking for any bribe from him. He also denied offering any matches to Chichek Mammadova and repeatedly insisted that he had been standing outside when she had immolated herself. He noted that the police officers had not used any force against the applicant or his family members. He also denied issuing any instructions to move the applicant's possessions out of the dwelling and stated that the police officers had decided to do so by themselves.", "3. Y.A., an SCEA official 51. Y.A. testified that, on 26 March 2004, his colleagues E.G. and F.K.", "had asked him to accompany them to the premises that the applicant had illegally occupied. When they arrived, there were already an unspecified number of police officers and an unspecified number of the applicant's relatives and friends. He and E.G. were standing outside the building, a significant distance away from the entrance to the premises occupied by the applicant. A little while later, they heard a commotion inside the premises and saw several police officers run inside.", "The latter brought out a badly burnt woman and sent her to a hospital. One of the police officers, E.N., helped put out the fire and, as a result, suffered a burn injury to his hand. (However, in another deposition Y.A. slightly changed his recollection of the above events and specified that, after K.A. and several police officers had knocked on the applicant's door, they had all gone inside.", "A little while later, Y.A. heard screams from the inside and heard the police officers bring out Chichek Mammadova.) 52. The applicant, by this time, had gone away somewhere else and there was a state of confusion and disarray at the scene of the incident. Therefore, the applicant's possessions were loaded onto a lorry and taken to a more secure place (the hostel) for “temporary storage”.", "Subsequently, the applicant reclaimed his possessions and took them back to the same premises in the Commissariat building that he had illegally occupied. 53. Y.A. insisted that he and E.G. had been standing outside when Chichek Mammadova had immolated herself and that E.G.", "had never offered any matches to her. He submitted that the police officers had not used any force against the applicant or his family members. 4. F.K., an SCEA official 54. F.K.", "testified that S.R., a head of department at the SCEA, had instructed him and E.G. to participate, as “observers” from the SCEA, in the “prophylactic measures” that would be taken the next day in connection with the applicant's illegal occupation of the premises in the Commissariat building. However, in the early morning of 26 March 2004 he was away on another assignment and arrived at the scene of the incident only after Chichek Mammadova had immolated herself. He had assisted in the transportation and delivery of the applicant's possessions to the hostel's superintendent. 5.", "S.R., an SCEA official 55. S.R. testified that, in early March 2004, he had received information that a family of internally displaced persons had illegally settled in the administrative building of the Sumgayit Commissariat. Thereafter, the applicant came to the SCEA to meet him personally and asked him to allow his family to stay in that building. However, S.R.", "refused, stating that the applicant's actions were illegal. 56. He further noted that, on 26 March 2004, he had instructed E.G. and Y.A. to go to the applicant's premises and have a “prophylactic conversation” with the latter.", "He also requested the Sumgayit City Police Office to send some police officers there in order to “avoid any incidents”. However, S.R. insisted that he had not instructed either E.G. and Y.A. or the police officers to evict the applicant's family by force.", "The applicant's possessions were moved out of the premises only after the act of self‑immolation by Chichek Mammadova pursuant to a decision taken on the spot by the SCEA officials, in order to preserve the possessions from possible theft in the atmosphere of confusion which ensued at the scene of the incident. 6. J.M., Deputy Head of the Sumgayit City Police Office 57. J.M. testified that he had received an oral instruction to carry out a “prophylactic conversation” with the applicant's family and to protect public order at the site during such “prophylactic” measures.", "For this purpose, he sent police officers E.N. and N.G. to the Commissariat building. He himself also went there at around noon on 26 March 2004 and talked to the applicant and the SCEA officials who were already there. About 5-10 minutes after his arrival, he heard screams from inside the applicant's dwelling and saw E.N.", "and N.G. go inside. The latter helped to put out the fire on Chichek Mammadova's body and to send her to hospital. Thereafter, he called more police officers to the scene in order to restore order and preserve the applicant's possessions. 7.", "C.V., police officer 58. C.V. testified that on 26 March 2004 he and his colleague N.A. had been told that the authorities would carry out a “prophylactic conversation” with the applicant and had been instructed to go to the Commissariat building with the aim of protecting public order. When they arrived at the site, there were four other police officers (J.M., E.N., N.G. and S.S.), as well as E.G., Y.A.", "and K.A. Then K.A. knocked on the door and the applicant came out. The applicant and J.M. engaged in a conversation.", "The other police officers, including himself, were standing nearby. E.G. and Y.A. were standing about 30 metres from the entrance to the dwelling. While J.M.", "and the applicant were talking, C.V. heard screams from inside. He and two other police officers (N.A. and E.N.) went inside and saw Chichek Mammadova on fire, coming out of a back room. The police officers, including himself, put out the fire on her body by throwing blankets on her.", "At this time, the applicant went away somewhere, possibly to a post office. About 15 minutes later, one of Chichek Mammadova's relatives arrived and took her to hospital. Out of the applicant's family, only the applicant's elderly mother-in-law remained at the scene and she was in a state of shock because of her daughter's suicide attempt. The applicant's home possessions were essentially left unattended at this moment, so they were loaded onto a lorry and taken to a more secure place. 59.", "C.V. denied applying any force or pressure on the applicant or his family members. He did not assist in moving out the applicant's possessions. 8. N.A., police officer 60. N.A.", "testified that on 26 March 2004 he had received an instruction from his superiors to go to the Commissariat building with the aim of protecting public order during the eviction of the applicant's family. He went there together with C.V., another police officer. At an unspecified moment, he heard screams from inside the applicant's premises, and he and other police officers ran inside and saw Chichek Mammadova on fire. They helped put out the fire and took her to hospital. He returned to the scene around two hours later and saw that the applicant's possessions had been loaded onto a lorry.", "He denied applying any force or pressure on the applicant or his family members. According to him, E.G. was standing outside when Chichek Mammadova immolated herself, never went inside the applicant's premises and never offered her matches. 9. E.N., police officer 61.", "E.N. testified that on 26 March 2004 he had been told that the authorities would carry out a “prophylactic conversation” with the applicant and had been instructed to go to the Commissariat building with the aim of protecting public order. The aim of the “prophylactic conversation” was to persuade the applicant to vacate the illegally occupied premises voluntarily. There were a total of five police officers at the site (including himself, J.M., C.V., N.A. and N.G.).", "E.G. and Y.A. were also there and were standing some distance away from the premises, because the applicant's relatives and friends kept insulting them. During J.M. 's conversation with the applicant, E.N.", "heard screams from inside the premises and immediately ran there. He saw a woman on fire. He took a blanket and extinguished the fire on her body. While doing this, he himself was injured, suffering a burn to his hand. 62.", "E.N. denied applying any force or pressure on the applicant or his family members. He also did not assist in moving out the applicant's possessions, as he had to leave the scene to receive medical treatment for his injury. 10. N.G., police officer 63.", "N.G. testified that on 26 March 2004 he had been told that the authorities would carry out a “prophylactic conversation” with the applicant and had been instructed to go to the Commissariat building with the aim of protecting public order. He went there together with E.N., his colleague. While one of the police officers engaged in conversation with the applicant, E.G., Y.A. and all the police officers (including himself) were standing outside.", "At this moment, he heard screams from inside the premises. He and E.N. went inside. E.N. extinguished the fire on Chichek Mammadova's body and, while doing this, suffered an injury to his hand.", "He accompanied E.N., who needed medical treatment, to hospital. Chichek Mammadova was taken to hospital by her relatives. When he returned about an hour later, he saw that the applicant's possessions were being loaded onto a lorry by the applicant's own relatives and friends. Police officers were occasionally assisting them. 64.", "N.G. denied applying any force or pressure on the applicant or his family members. He insisted that all the police officers had been standing outside the applicant's premises when Chichek Mammadova had set fire to herself inside the premises. E.G. and Y.A.", "were also outside, further away from the building. Police officers N.I. and S.S. were not at the scene of the incident at the time of Chichek Mammadova's suicide attempt and arrived only after the incident. 11. N.I., police officer 65.", "N.I. was a police officer whom the applicant and his mother-in-law specifically identified by first name in their statements, alleging that N.I. had used force against the applicant. 66. N.I.", "testified that at around noon on 26 March 2004 he had received information that a woman had immolated herself at the Commissariat building and that a large crowd of people had gathered there. He went to the Commissariat building and saw a lorry loaded with various household items. He enquired of the officials who were there what had happened. He then left the site. 67.", "N.I. insisted that he had not participated in this operation, that he had not been at the scene of the incident at the time when Chichek Mammadova had attempted suicide, that he had not met the applicant before, and that he was unaware of any reasons why the applicant had specifically mentioned his name in his complaints. 12. S.S., police officer 68. S.S. was a police officer whom the applicant identified by first name in his testimony, alleging that S.S. had used force against him.", "69. S.S. testified that at around noon on 26 March 2004 he had received an instruction by portable radio to go to the Commissariat building. When he arrived there at around 12.30 p.m., he found out that a woman had committed an act of self-immolation and had been taken to hospital. Other police officers told him the entire story. After he arrived, he only witnessed how the applicant's possessions were being loaded onto a lorry by the applicant's own relatives and friends.", "Police officers were occasionally assisting them. Out of the applicant's family, only his elderly mother-in-law was there. The applicant and his child had gone. 70. S.S. insisted that he had not been at the scene of the incident at the time when Chichek Mammadova had attempted suicide and that neither he nor any other police officer had used any force against the applicant or his family members.", "13. K.A., employee of Housing Maintenance and Utilities Board No. 1 71. K.A. stated that on 26 March 2004 her colleague at the Housing Maintenance and Utilities Board, B.I., had requested her to go to the applicant's dwelling following an instruction received from the SCEA.", "When she arrived there, she saw E.G., Y.A. and five or six police officers. E.G. and Y.A. told her that they needed a female to knock on the applicant's door and asked her to do it.", "When the door was opened, both the police officers and the SCEA officials quickly entered inside. Before she knocked on the door, Y.A. had also instructed her to procure a lorry. Therefore, she immediately left the scene after knocking on the door. For this reason, she did not witness the act of self-immolation by the applicant's wife.", "When she returned to the scene of the incident about 30 minutes later, she heard that Chichek Mammadova had attempted suicide and had been taken to hospital. K.A. was then asked to enter the applicant's dwelling and write an itemised list of the applicant's household items that were being loaded onto the lorry. She did not want to do this, but did so under forceful orders from the SCEA officials. 14.", "B.I., employee of Housing Maintenance and Utilities Board No. 1 72. B.I. stated that he had gone to the applicant's dwelling together with K.A., but had left before all the events had happened because of other urgent business. During the short period when he was there, he saw five or six police officers standing near the Commissariat building and E.G.", "and Y.A. standing a little further away. 15. T.M., television journalist 73. T.M.", "testified that at around 1 p.m. on 26 March 2004 she had heard about the incident in the Commissariat building. She immediately went there together with a camera operator. However, when they arrived, everything was over and they could not get any video footage of the relevant events. Thereafter, she went to the hospital where Chichek Mammadova had been taken, but was not able to interview her. 16.", "R.N., hostel superintendent 74. R.N. was the superintendent of the State-owned hostel where the applicant's family used to live before they moved to the new dwelling at the Commissariat building. According to him, the applicant's family lived in his hostel from 1994 to January 2004. The applicant's wife suffered from a “nervous disease” and was “mentally unstable”.", "In January 2004 the applicant's family left the hostel. On 26 March 2004 the SCEA officials and police officers brought the applicant's household possessions back to the hostel for “temporary storage” (as they explained). He signed the list of items and locked the applicant's possessions in a separate room. On 6 April 2004 the applicant reclaimed his possessions. 17.", "N.Q., an acquaintance of the applicant 75. N.Q. testified that, prior to the applicant's eviction from his dwelling, he had gone to the SCEA together with the applicant with the purpose of obtaining permission for the applicant to stay in the dwelling. He noted that, during that meeting, the SCEA officers had explained to the applicant that he was occupying the dwelling illegally. They had not demanded any bribes from the applicant in return for permission to stay there.", "18. S.B. 76. S.B. was a member of an association of veterans which occupied part of the premises in the Commissariat building.", "He described in general how the applicant had carried out repair works in his dwelling. He noted that there had been no objections from any State authorities during the time when the applicant had carried out the work. II. RELEVANT DOMESTIC LAW A. Relevant legal provisions on housing of refugees and internally displaced persons 77.", "Article 2 of the Law on Social Protection of Internally Displaced Persons and Individuals Equated to Them of 21 May 1999 (“the IDP Social Protection Act”) provides as follows: “Persons displaced from the place of their permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, the occupation of certain territories or continuous gunfire shall be considered internally displaced persons subject to the provisions of this Law.” 78. Article 5 of the IDP Social Protection Act provides as follows: “The relevant executive authority [the Cabinet of Ministers, the State Committee on Refugees' Affairs and local executive authorities, within the scope of their respective competence] shall deal with the housing of internally displaced persons. Residential, administrative and auxiliary buildings, as well as other buildings, shall be used for such housing purposes. Where there is no possibility of housing internally displaced persons in such buildings or where the population density in a specific settlement does not allow such a possibility, they shall be settled in camps specially set up for internally displaced persons. ... Internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed.", "Otherwise, the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation...” 79. Clause 4 of the Regulations on Resettlement of Internally Displaced Persons to Other Accommodation, adopted by the Cabinet of Ministers in Resolution No. 200 of 24 December 1999 (“the IDP Resettlement Regulations”), provides: “In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation.” B. Criminal Code of 2000 80. Article 125 (“Incitement to suicide”) of the Criminal Code provides as follows: “Incitement of a person who is dependent on the inciter for material, service-related or other reasons to commit or attempt suicide by means of cruel treatment of this person, or by means of systematic denigration of his dignity, or by means of threats shall be punishable by restraint of liberty for a term of up to three years or by imprisonment for a term of three to seven years.” 81.", "Articles 308, 309 and 311 of the Criminal Code deal respectively with the criminal offences of abuse of official authority, excess of official authority and bribe-taking. C. Code of Criminal Procedure of 2000 82. By Article 87.6 of the Code of Criminal Procedure (“the CCrP”), a person recognised as a “victim of crime” has, inter alia, the following procedural rights: to submit material to the criminal case file; to request the status of a private prosecutor at any pre-trial stage; to object to actions of the criminal prosecution authority; to lodge petitions; to have access to transcripts and documents in the case file; to be informed about and to obtain copies of the procedural decisions of the criminal prosecution authority (including a decision to discontinue the criminal proceedings); and to lodge appeals against procedural steps or decisions. In contrast, a person participating in the proceedings as a witness is entitled to have access only to those transcripts and documents which are related to him or her (Article 95.6.8). 83.", "On being informed about acts of a criminal character that are planned or have been carried out or on discovering a criminal event by himself or herself, a preliminary investigator, investigator or prosecutor must take the necessary steps to preserve and obtain the relevant evidence and must immediately begin an investigation (Article 38.1). The initial grounds for instituting criminal proceedings may be either statements about a planned or committed criminal offence submitted by individuals, or information received from companies, officials and the mass media, or direct discovery of a criminal offence by a preliminary investigator, investigator or prosecutor (Article 46.2). 84. Parties to criminal proceedings (and other persons involved in such proceedings in cases specified in the CCrP) are entitled to complain about procedural steps or decisions by the criminal prosecution authority. Procedural steps or decisions by the preliminary investigator or the investigator may be appealed against to the supervising prosecutor and the procedural steps or decisions of the latter may be appealed against to the hierarchically superior prosecutor (Articles 122.2.1 and 122.2.2).", "Certain types of procedural steps or decisions (of the preliminary investigator, investigator or supervising prosecutor) specified in Article 449.3 of the CCrP may be appealed against directly to the supervising court (Article 122.2.3). 85. A decision not to institute criminal proceedings is taken by a preliminary investigator, investigator or supervising prosecutor when there are no lawful grounds for instituting criminal proceedings (Article 212.1). Within 24 hours after its issuance, this decision is sent to the supervising prosecutor as well as to the person who had informed the law-enforcement authorities about the alleged criminal offence (Article 212.2). A decision not to institute criminal proceedings may be appealed against to the supervising prosecutor, or a prosecutor hierarchically superior to the supervising prosecutor, or to the supervising court (Article 212.3).", "If an appeal is lodged with the supervising court, the latter may either (a) quash the decision and draw the supervising prosecutor's attention to any breaches of the CCrP's provisions concerning the procedure for criminal inquiries and requirements for instituting criminal proceedings, or (b) uphold the decision not to institute criminal proceedings (Article 212.4.2). THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 86. Relying on Articles 2, 3, 6 and 13 of the Convention, the applicant complained that State officials and police officers had been responsible for his wife's death, because they had unlawfully entered his family's dwelling, used excessive force and failed to take immediate measures to rescue his wife when she had set herself on fire. He further complained that the investigation authorities had not properly investigated the circumstances of his wife's death.", "The Court considers that the present complaint falls to be examined solely under Article 2 of the Convention, which reads in its first sentence as follows: “Everyone's right to life shall be protected by law. ...” A. Admissibility 87. The Government submitted that the applicant had not exhausted available domestic remedies. They noted that he had not lodged an appeal against the Sumgayit City Court's decision of 1 April 2005 upholding the investigator's decision not to institute criminal proceedings. Moreover, the applicant had not lodged any judicial complaints against the second decision refusing to institute criminal proceedings, given on 17 August 2005 by the investigator of the Binagadi District Prosecutor's Office, following the second criminal inquiry.", "88. The applicant submitted that he had taken all the necessary steps to exhaust the domestic remedies. In particular, Article 212.3 of the CCrP provided for two options for appeal from the investigator's decisions: either an appeal to the supervising prosecutor or an appeal to the court. Following the second decision on the refusal to institute criminal proceedings, the applicant had chosen to appeal to the supervising prosecutor, by sending a letter of complaint to the Prosecutor General. The latter had upheld the investigator's decision.", "The applicant argued that using the other alternative (appeals to supervising courts) did not offer him any prospect of success as the courts routinely upheld decisions of the prosecution authorities. Moreover, the applicant argued that, in any event, since the prosecution authorities had in fact subsequently instituted criminal proceedings, he was absolved from the requirement to lodge appeals against the previous decisions not to institute criminal proceedings. Thereafter, in the context of the criminal investigation, he had duly lodged appeals against each of the investigators' decisions to suspend the criminal investigation, but his appeals had been unsuccessful. 89. The Court notes that the Government's objection is limited to the alleged failure by the applicant to exhaust all possible appeals to the supervising courts against the decisions of 14 May 2004 and 17 August 2005 not to institute criminal proceedings following the inquiries by the Sumgayit City Prosecutor's Office and the Binagadi District Prosecutor's Office respectively.", "The Court notes that, had these appeals been lodged and been successful, they would have resulted in the quashing of the relevant decision and a renewed inquiry, possibly followed by a decision to institute criminal proceedings. However, the Court observes that, in any event, on 7 June 2006, pursuant to a decision by the Deputy Prosecutor General, criminal proceedings were actually instituted in the present case. Even assuming that the remedies suggested by the Government were otherwise effective, the Court accepts the applicant's argument that the institution of criminal proceedings produced the same outcome as the remedies suggested by the Government, making it no longer necessary for the applicant to pursue them. Moreover, the Court notes that, in the context of the criminal proceedings, the applicant repeatedly challenged various procedural decisions by the investigation authorities before the supervising courts, all of which challenges produced repetitive results, as the investigation was repeatedly suspended and his appeals were dismissed (except for one occasion when the supervising court instructed the investigation authorities to resume the investigation and ordered remedial measures, after which the investigation was in any event suspended again after a short period). Thus, in any event, the Court is not persuaded that any additional appeals would have made any difference in the present case.", "90. For the above reasons, the applicant was absolved from the requirement to exhaust the remedies indicated by the Government. As the Government have not suggested any other specific remedies available to the applicant in theory or practice, there is no call for the Court to look further into this matter. 91. Accordingly, the Court dismisses the Government's objection.", "It further notes that this complaint is not otherwise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' submissions 92.", "The Government argued that all necessary steps had been taken by the prosecution authorities to establish whether any person, other than Chichek Mammadova herself, had been responsible for her death. However, the inquiries and investigations carried out by the domestic authorities had conclusively established that the applicant's wife had committed suicide without the involvement of any other individuals. The Government maintained that the State was not responsible for the death of the applicant's wife and that the official investigation into the circumstances of her death had been complete and comprehensive. 93. The applicant submitted that, although he and his family had settled in the premises of an administrative building without prior permission, their actions were not unlawful, as the domestic law allowed them to find accommodation on their own initiative as long as they did not infringe the housing rights of other persons.", "In any event, on account of the high number of refugees and internally displaced persons in the country, the authorities were usually tolerant in cases when refugees and internally displaced persons settled of their own accord in various administrative or other premises. It was the obligation of the authorities, and in this case the SCEA, to provide the applicant and his family with suitable accommodation, and they had not done so. Therefore, the applicant and his family should have not been evicted until they were provided with suitable accommodation for a large family. 94. The applicant further maintained that the operation conducted by the State agents had been unlawful.", "The local executive authorities and police had no competence under domestic law to evict anyone by force without a court order. By doing so in the present case, the SCEA officials and police officers involved in the operation had abused their authority, which was a criminal offence. Moreover, the State agents had known that the applicant's family were internally displaced persons and had housing problems. Therefore, they should have anticipated that their actions might cause an emotional reaction on the part of the applicant's family members. When the operation had commenced, the State agents had assumed full control of the situation in the applicant's dwelling.", "Chichek Mammadova's suicide threat might have seemed inadequate, but it was the “most accessible and appropriate way of defence” in the circumstances. There had been enough time between the moment when Chichek Mammadova had poured kerosene on herself and the moment she had ignited it for the State agents to take steps to save her life. They could, for example, have defused the tension by leaving the dwelling, or ripped off Chichek Mammadova's clothes soaked in kerosene, or stopped her from setting herself on fire. However, they had done nothing to stop her from carrying out her threat, and one of them had even mockingly encouraged her to do it by offering her a box of matches. 95.", "The investigations carried out into the circumstances of Chichek Mammadova's suicide had not been effective. No criminal inquiry had been conducted until after she had died. No one had questioned her while she was in hospital for three days and while she could still talk or communicate by other means. Subsequently, during the questioning, most of the implicated State agents had lied in their testimonies, in particular in respect of the question whether they had gone inside the dwelling. As a result, there were many contradictions between witness testimonies, and there were serious discrepancies even between the testimonies of the various State agents themselves.", "However, the investigators had done nothing to effectively address these contradictions, such as allowing the witnesses to be cross‑examined. The applicant claimed that some of the written testimonies of the State agents had been written in the same handwriting and “belonged stylistically” to one of the investigators. 96. The applicant argued that, in general, the investigation had been “superficial and biased”. On several occasions, the investigating authorities had failed to inform him about their procedural decisions and actions.", "Some of the decisions of supervising courts had been sent to the applicant late and he had therefore been unable to appeal against them. The applicant had generally not been given an opportunity to review and challenge any evidentiary material obtained by the investigating authorities. The delivery dates of some of the investigating authorities' procedural decisions had allegedly been “falsified”. The applicant further claimed that the Government had failed to submit to the Court part of the material from the investigation. 97.", "The applicant also noted that the authorities had only carried out two brief and superficial criminal inquiries before he had lodged the present application with the Court. The criminal proceedings had been instituted only after the authorities had become aware of the Court proceedings. 2. The Court's assessment (a) General principles (i) Principles relating to the prevention of infringements of the right to life: the substantive aspect of Article 2 98. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which in peacetime no derogation is permitted under Article 15.", "Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324). 99.", "The Court reiterates that the first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “use of force” disproportionate to the legitimate aims referred to in sub-paragraphs (a) to (c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself (see Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998‑VIII; Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001-III; and Renolde v. France, no.", "5608/05, § 81, ECHR 2008‑...). However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising (see Osman, cited above, § 116). 100. A failure to comply with the positive obligation will occur where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the acts of a third party (or, in particular circumstances, from self-harm) and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (ibid.", "; see also Branko Tomašić and Others v. Croatia, no. 46598/06, § 51, ECHR 2009‑...; see also, mutatis mutandis, Tanribilir v. Turkey, no. 21422/93, § 70, 16 November 2000, in respect of a positive obligation to protect from self-harm). (ii) Principles relating to the response required in the event of alleged infringements of the right to life: the procedural aspect of Article 2 101. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no.", "48939/99, § 91, ECHR 2004-XII, and Sergey Shevchenko v. Ukraine, no. 32478/02, § 63, 4 April 2006). In that connection the Court has held that, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an “effective judicial system” does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available to the victims (see, for example, Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VII; Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002-I; and Mastromatteo v. Italy [GC], no.", "37703/97, §§ 90, 94 and 95, ECHR 2002‑VIII). The minimum requirement for such a system is that the persons responsible for the investigation must be independent from those implicated in the events. This means hierarchical or institutional independence and also practical independence (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 70, ECHR 2002‑II, and Mastromatteo, cited above, § 91). 102.", "The Court further reiterates that, in cases where individuals have been killed as a result of the use of force, the obligation to protect the right to life requires by implication some form of independent and impartial official investigation that satisfies certain minimum standards as to effectiveness (see, among many other authorities, Gül v. Turkey, no. 22676/93, § 88, 14 December 2000; Anguelova v. Bulgaria, no. 38361/97, § 136, ECHR 2002‑IV; and Makaratzis v. Greece [GC], no. 50385/99, § 73, ECHR 2004‑XI). In the Court's opinion, the same standards also apply to investigations in cases where a person dies in suspicious circumstances in which the State's positive obligation under Article 2 is at stake (see, mutatis mutandis, Trubnikov v. Russia, no.", "49790/99, §§ 87-88, 5 July 2005; Paul and Audrey Edwards, cited above, § 74; and Slimani v. France, no. 57671/00, § 30, ECHR 2004‑IX). 103. Specifically, the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The kind of investigation that will achieve those purposes may vary according to the circumstances.", "However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, among other authorities, Tahsin Acar v. Turkey [GC], no. 26307/95, § 221, ECHR 2004‑III). 104. The investigation must also be effective in the sense that it is capable of ascertaining the circumstances in which the incident took place and leading to the identification and punishment of those responsible.", "This is not an obligation of result, but of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see McKerr v. the United Kingdom, no. 28883/95, § 113, ECHR 2001‑III, and Ognyanova and Choban v. Bulgaria, no. 46317/99, § 105, 23 February 2006).", "105. A requirement of promptness and reasonable expedition is implicit in this context. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating suspicious deaths may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, mutatis mutandis, McKerr, cited above, § 114, with further references). For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.", "The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (ibid., § 115, with further references). (b) Application to the present case (i) Whether the State agents were responsible for Chichek Mammadova's death 106. It is undisputed that Chichek Mammadova's death was caused by suicide and was not caused by any lethal force used by any other person. She inflicted fatal injuries to herself by pouring a flammable liquid over herself and igniting it.", "According to all relevant witness testimonies and expert opinions, she did so in direct response to the police operation conducted in the dwelling where she and her family resided. In this context, the parties are in dispute as to the extent of the responsibility of the SCEA officials and police officers (hereafter, where necessary, collectively referred to as “the State agents”) for the incident leading to Chichek Mammadova's death. Therefore, the Court considers that it is necessary to have regard to the nature of this police operation and to determine the degree of control that the authorities exercised over the events in question. Furthermore, it is necessary to determine whether the circumstances of the case gave rise to a positive obligation on the part of the State agents to prevent the danger to Chichek Mammadova's life. 107.", "It is clear from the facts of the case that the applicant and his family settled in the dwelling of their own accord, without any official authorisation to settle inside an administrative building not designated for residential purposes. The Court is aware that, as a result of the Nagorno‑Karabakh conflict, Azerbaijan has had to deal with the continuous problem of temporarily accommodating hundreds of thousands of refugees and internally displaced persons who have fled their permanent places of residence in Armenia and in the conflict zone. It is not an uncommon occurrence for some of these refugees and internally displaced persons to have attempted to find housing of their own accord, by occupying parts of administrative buildings or even private flats (compare Akimova v. Azerbaijan, no. 19853/03, §§ 8-10, 27 September 2007). 108.", "It is also clear that the occupation of the dwelling by the applicant's family was considered illegal by the SCEA, which had repeatedly demanded them to vacate it. As to the operation conducted by the SCEA and the police in the applicant's dwelling on 26 March, the parties disputed its nature and purpose. 109. The only explanation provided by the authorities (the SCEA and police officials, the investigation authorities, and the Government in their submissions in the present case) was that a number of public servants and police officers had been dispatched to the applicant's dwelling for “prophylactic measures” and that they had no intention of evicting the applicant's family by force. Furthermore, according to the authorities, the decision to move the applicant's belongings out of the dwelling was taken on the spot, only after Chichek Mammadova had immolated herself, in order to guarantee the safety of these belongings in the absence of the applicant and the rest of his family (all of whom had presumably left to accompany Chichek Mammadova to hospital).", "However, the Court is not convinced by this explanation. It notes that at least five police officers and several other officials were involved in this operation. Some witnesses testified (see, for example, the testimony of K.A. in paragraph 71 above) that an order to bring a lorry had been given as soon as the authorities had arrived at the applicant's dwelling, prior to Chichek Mammadova's suicide attempt. No meaningful explanation was provided as to why so many police officers were needed and why a lorry was brought, if the authorities' only intention on that day was to have a “prophylactic conversation” with the applicant.", "Moreover, even assuming that the dwelling and the belongings of the applicant's family were left unattended by them after Chichek Mammadova's suicide attempt, it has not been explained why the SCEA officials had to move the belongings out of the dwelling and transport them to another location, apparently at the State's expense, and why they could not secure their safety by other, more effortless means. In the light of the above, the Court considers that the only reasonable explanation for engaging so many police officers and bringing a lorry to the scene was that, from the very beginning, the operation was aimed at having the applicant's family vacate the dwelling on that same day, either by persuading them to do so voluntarily or by evicting them by force. This conclusion is supported by the fact that their personal belongings were indeed moved out of the dwelling on that same day. In such circumstances, the Court cannot but conclude that, regardless of various vague terms such as “prophylactic measures” or “prophylactic conversation”, which were subsequently used, the real aim of this operation was to evict the applicant's family from the dwelling. 110.", "Moreover, it is questionable whether this operation was conducted on a lawful basis. The Government have not provided any explanation as to the legal basis for the actions of the SCEA officials and police officers in the present case. According to the material in the case file, it appears that the SCEA officials and police officers acted merely on the basis of vaguely worded oral instructions coming from the SCEA administration. There was no court order authorising the SCEA and the police to evict the applicant's family. The domestic prosecuting authorities' and courts' decisions were not uniform in their assessment of the operation, with some finding that they acted within their competence (see paragraphs 31 and 42 above), and others casting doubt on the lawfulness of the authorities' actions (see paragraphs 26, 33 and 39 above).", "111. Nevertheless, the Court considers that, for the purposes of the present complaint under Article 2, the question of whether there was a lawful basis for this operation is not crucial. The Court considers that, by conducting the operation to evict the applicant's family (whether lawfully or not), the authorities could not be considered to have intentionally put the life of the applicant's wife at risk or otherwise caused her to commit suicide. The Court considers that, reasonably speaking, self-immolation as a protest tactic does not constitute predictable or reasonable conduct in the context of eviction from an illegally occupied dwelling, even in a situation involving such a particularly vulnerable sector of the population as refugees and internally displaced persons. When deciding to send the police to the applicant's dwelling in order to evict his family, the authorities could not have reasonably anticipated that the applicant's wife might react by committing suicide.", "There is no evidence to suggest that, in advance of the operation, the State agents involved had been aware, or should have been aware, of Chichek Mammadova's state of mental health and her alleged propensity for erratic behaviour. 112. For the above reasons, the Court finds that the authorities' decision to evict the applicant's family from the dwelling (irrespective of whether or not it had a lawful basis) did not, in itself, engage the State's responsibility under Article 2 of the Convention. Moreover, having regard to the evidence before it, the Court considers that, despite the applicant's allegations, there is insufficient evidence to establish, to the requisite standard of proof, that the State agents involved incited or otherwise encouraged Chichek Mammadova to set fire to herself in the course of the eviction process. 113.", "However, the State's responsibility under Article 2 is not limited only to the above considerations. The Court considers that the principal issue in the present case stems from the fact that, during the process of eviction, the events unfolded in an unpredictable way and the State agents were suddenly confronted with a situation where their demands to vacate the dwelling were met with an act of self-immolation by the applicant's wife. In this context, it is necessary to determine whether this specific situation triggered the State's positive obligation under Article 2; that is, whether at some point during the course of the operation the State agents became aware or ought to have become aware that Chichek Mammadova posed a real and immediate risk of suicide and, if so, whether they did all that could reasonably have been expected of them to prevent that risk. 114. The Court notes that, as a general rule, in a police operation with the aim of eviction, as in any other police operation, the police are expected to place the flow of events under their control, to a certain degree.", "Moreover, in the present case, Chichek Mammadova's actions, however unpredictable or unreasonable they might have seemed, constituted a direct response to the State agents' demands and actions. 115. The Court considers that, in a situation where an individual threatens to take his or her own life in plain view of State agents and, moreover, where this threat is an emotional reaction directly induced by the State agents' actions or demands, the latter should treat this threat with the utmost seriousness as constituting an imminent risk to that individual's life, regardless of how unexpected that threat might have been. In the Court's opinion, in such a situation as in the present case, if the State agents become aware of such a threat a sufficient time in advance, a positive obligation arises under Article 2 requiring them to prevent this threat from materialising, by any means which are reasonable and feasible in the circumstances. 116.", "In the context of the present case, the Court notes that, depending on practical possibilities and the moment at which the State agents became aware of the threat, some of the hypothetical steps to be considered could have entailed, inter alia, calming down the situation by verbally persuading Chichek Mammadova to refrain from any actions threatening her life, or physically preventing her from taking hold of and pouring kerosene on herself, or physically preventing her from igniting it, or putting out the fire as soon as she set fire to herself. Such steps could also have included providing immediate first aid, calling an ambulance or assisting in hospitalising the victim. The Court acknowledges that, given the unpredictability of human conduct and the relatively short time span between the verbal threat and the act of self-immolation, there may indeed have been very limited time and facilities available to the State agents to react meaningfully. 117. The Court notes, however, that in the present case the exact factual circumstances surrounding the incident itself are heavily disputed and are far from being clear, making it difficult to determine whether the State agents should have known of the victim's intention to commit suicide prior to her actually setting fire to herself and, if so, what adequate measures could feasibly have been taken by the State agents in those circumstances.", "Owing to the contradictory nature of the witness testimonies, it is not clear exactly when the State agents became aware of the threat to Chichek Mammadova's life. More specifically, it is impossible to establish conclusively whether some or all of the State agents were inside or outside the applicant's dwelling during the period from the moment when Chichek Mammadova started preparing for her suicide attempt until the moment when she set herself on fire. It is therefore not clear whether any of the State agents heard the verbal threats made by her, whether they observed her preparations, or whether they only became aware of the suicide attempt after it was too late to prevent it. If there were any State agents inside, it is not clear how far away they were standing from the victim. If all the State agents were outside, it is not clear whether they could actually have observed Chichek Mammadova's relevant actions from where they were situated.", "It is not clear how much time elapsed from the moment the threat was made until the moment the victim set fire to herself, and how much time elapsed while she was burning. Moreover, there is no information as to the floor plan and the interior and exterior features of the dwelling that could make it possible to determine whether there were any physical barriers obstructing quick and easy access to Chichek Mammadova by those who were in the vicinity. 118. For the same reasons, it is difficult to determine any specific steps that the State agents could have been expected to take in order to save her life in the specific circumstances of the present case. It appears that at least one police officer, E.N., possibly with the aid of other police officers, helped put out the fire on Chichek Mammadova's body after she had set fire to herself.", "By this time, however, she had already suffered serious life‑threatening injuries. It further appears – and the Court finds this circumstance of particular concern – that none of the State agents attempted to call an ambulance or provided any assistance in transporting Chichek Mammadova to hospital. Nevertheless, having assessed the available information concerning the exact circumstances of the incident, the Court finds that it is so scarce and insufficient that it is unable to determine whether the State agents could have taken any additional measures to prevent Chichek Mammadova from carrying out her threat of suicide or at least to minimise the extent of the injuries she received. 119. The Court also notes that the situation in the present case cannot be equated to, for example, a situation involving a death in custody, where the burden may be regarded as fully resting on the State to provide a satisfactory and plausible explanation, in the absence of which inferences unfavourable to the State can be drawn.", "120. In view of the above analysis, the Court considers that, owing to the lack of relevant factual details, doubts remain that the responsibility for Chichek Mammadova's death might have lain at least in part with the authorities. However, having assessed the available material, the Court finds those doubts insufficient to establish conclusively that the authorities acted in a manner incompatible with their positive obligations to guarantee the right to life. 121. It follows that there has been no violation of Article 2 of the Convention in this respect.", "(ii) Whether the investigation was adequate and effective 122. Seeing that Chichek Mammadova's life was lost in circumstances potentially engaging the responsibility of the State agents, a procedural obligation arose under Article 2 of the Convention to carry out an effective and adequate investigation into the circumstances of the incident causing her death (compare Sergey Shevchenko, cited above, § 66, and Trubnikov, cited above, § 89). 123. The Court considers that the domestic investigation in the present case was inadequate, as it failed to seek answers to all the issues relevant for an assessment of the State agents' role and responsibility in the incident and therefore failed to establish the necessary factual details to determine whether they were under an obligation to safeguard Chichek Mammadova's life. 124.", "In particular, the investigation authorities appear to have limited their investigation only to the question of whether the State agents incited Chichek Mammadova to commit suicide, within the meaning of Article 125 of the Criminal Code, in other words whether they did something which directly caused her death. It appears that, once the answer to this question was found, no further inquiry was deemed necessary by the investigation authorities. However, in the present case, it was also necessary to investigate whether the State agents had at some point become aware of the suicide threat and whether, in the particular circumstances, they took all adequate and possible steps to protect Chichek Mammadova's life. However, as can be seen from the analysis below, this was not the case. Such an incorrect approach to the investigation led to a failure to clarify a number of crucial factual issues in the case.", "125. It appears from the material in the case file that, as a general rule, the witnesses were simply asked to narrate the sequence of events as they recalled them and to focus only on the issue of whether any of the State agents had taken any steps provoking Chichek Mammadova to commit suicide. Apart from this particular aspect of the case, the investigation authorities did not appear to pay attention to clarifying other relevant factual circumstances or to ask any additional specific questions in an attempt to elicit more information in that respect. This resulted in rather brief and vague eyewitness evidence, lacking many specific details. The investigation authorities' factual findings as to the sequence of events were very sketchy and brief, and failed to cover a number of very important factual details.", "126. Specifically, the Court notes at the outset that the manner in which the operation was conducted at the scene of the incident was a prima facie problematic issue in this case, and it was indeed regarded as such in some of the authorities' initial reactions to the applicant's complaints (see, for example, paragraph 26 above). This issue was relevant for assessing the adequacy of the State agents' actions under Article 2 and, therefore, should have been of primary concern for the investigation authorities. In the Court's view, the investigation authorities should have sought from their relevant police superiors a more detailed explanation as to the planning of the operation, as to how the chain of command had been organised on the scene, and as to what specific orders, if any, had been given to individual police officers after the police had arrived at the applicant's dwelling. Information of such nature might have helped to clarify the overall picture of the circumstances surrounding the incident.", "However, none of the above steps were taken. 127. Another shortcoming of the investigation was the authorities' omission to attempt a reconstruction of the exact sequence and duration of the events and to address the discrepancies in witness testimonies. In the Court's opinion, it is obvious that, in order to determine the adequacy and appropriateness of the steps taken by the State agents to protect Chichek Mammadova's life, it was of paramount importance in the present case to establish whether any of them had been in her immediate vicinity. It was therefore incumbent on the investigation authorities to determine, inter alia, which specific State agents, if any, were in close proximity to Chichek Mammadova, whether they were physically able to take steps to interrupt her suicide attempt, and how much time elapsed from the moment she made a verbal threat until she soaked herself in kerosene and, further, until she set fire to herself.", "128. There are serious discrepancies in the available witness testimonies as to precisely what happened, and in what order, after K.A. first knocked on the applicant's door. In particular, while the applicant and his family members claimed that the State agents had entered the premises and observed the suicide threats made by Chichek Mammadova, the majority of the State agents involved denied ever entering the dwelling and insisted that they had become aware of the suicide threat only after she had set fire to herself. On the other hand, some of the State agents, notably E.G., Y.A.", "and K.A., specifically stated that several police officers had entered the applicant's dwelling (see paragraphs 49, 51 and 71 above), although it is not clear from these statements whether the police officers were still in Chichek Mammadova's immediate vicinity at the time when she attempted suicide. Nevertheless, these statements support the plausibility of the applicant's account of the events. 129. The Court reiterates that the procedural obligation under Article 2 is not an obligation to achieve a particular result and that there may be situations when, owing to the lack of evidence or its contradictory nature, it is objectively impossible to reconstruct the exact circumstances and sequence of events. Such impossibility, however, must be effectively established by a thorough and comprehensive investigation.", "The Court notes that, in the present case, despite discrepancies in witness testimonies, the investigating authorities disregarded the importance of establishing the exact circumstances of the incident and did not take any effective steps to clarify the points on which various witnesses either disagreed or failed to provide a complete account. This could have been accomplished by, inter alia, posing specific questions to witnesses with a view to clarifying specific details of the sequence and timing of how events unfolded, conducting face-to-face confrontations between those witnesses who gave conflicting testimonies, and seeking to identify and question other eyewitnesses to the incident such as the applicant's relatives and other onlookers whom most of the State agents mentioned in their respective testimonies. The investigating authorities' failure to take the above steps contributed to the investigation's inability to produce a complete and detailed factual picture of the incident. 130. Moreover, from the material available in the case file, it is unclear on what exact date the initial criminal inquiry was commenced.", "It is clear, however, that Chichek Mammadova was not questioned while she was in hospital for three days before she died, despite the applicant's claim that she had been physically able to communicate during that period. Obviously, obtaining the victim's testimony, if possible, was indispensable for the effectiveness of the investigation. After the incident, the authorities were aware of the fact that she had suffered life-threatening injuries making her survival uncertain and were therefore obliged to act in a prompt and diligent manner in order to try to obtain evidence which would no longer be available after her death. No explanation was provided by the Government or the domestic investigation authorities as to the reasons for the failure to do so. In the Court's view, this failure undermined the effectiveness of the investigation (compare Esat Bayram v. Turkey, no.", "75535/01, § 49, 26 May 2009). 131. The above leads the Court to the next issue – that of the promptness of the investigation. As noted, the authorities failed to take immediate action and to interview the victim while this was possible. As to the overall length of the investigation, the Court notes that there were two “preliminary” criminal inquiries and one set of criminal proceedings in the present case, which, for the purposes of the procedural aspect of Article 2, should be examined as a whole.", "Thus, it should be noted that the overall length of the domestic investigation was more than four years. The investigation was adjourned and resumed a number of times without any evident progress in its effectiveness and without any substantive improvement in the adequacy of the investigative measures taken. While on several occasions the supervising prosecutors or courts criticised the deficiencies in the proceedings and ordered remedial measures (see, for example, paragraphs 33 and 39 above), those instructions were not complied with. 132. The Court notes, furthermore, that the criminal proceedings were instituted and the applicant was granted the status of a victim in the proceedings only in June 2006, more than two years after his wife's death.", "He was thereby denied the possibility of effectively intervening in the course of the investigative steps taken prior to that date (compare Trubnikov, cited above, § 93, and, mutatis mutandis, Muradova v. Azerbaijan, no. 22684/05, § 130, 2 April 2009). Accordingly, the Court cannot find that the investigation fully complied with the requirement to secure public accountability by safeguarding the legitimate interests of the next-of-kin. 133. For the above reasons, the Court concludes that there has been a violation of the respondent State's obligation under Article 2 of the Convention to conduct an adequate and effective investigation with a view to establishing the extent of the State agents' responsibility for Chichek Mammadova's death.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. Alleged ill-treatment of the applicant 134. The applicant complained under Article 3 of the Convention that he had been beaten by the police officers during the events of 26 March 2004 and that, furthermore, having witnessed the events that had led to his wife's death, he had experienced serious anguish and distress. 135.", "As to the alleged beating by the police during the eviction, the Court notes that the evidence available in respect of this part of the complaint is not sufficient to enable it to examine the question of whether the applicant was subjected to ill-treatment. 136. As to the alleged suffering experienced by the applicant as a result of his wife's death, the Court reiterates that, on the basis of the information available, it was impossible to establish in the present case that the State agents were responsible, directly or indirectly, for the death of the applicant's wife (compare, for example, Ülkü Ekinci v. Turkey, no. 27602/95, § 149, 16 July 2002). Although the inadequacy of the investigation into his wife's death may arguably have caused the applicant feelings of anguish and mental suffering, the Court does not find in the present case sufficient special features which would justify a separate examination of an alleged violation in respect of the applicant under Article 3 of the Convention (compare, mutatis mutandis, Tahsin Acar, cited above, § 239; Uçar v. Turkey, no.", "52392/99, § 110, 11 April 2006; and Çakıcı v. Turkey [GC], no. 23657/94, §§ 98-99, ECHR 1999‑IV). 137. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B.", "Alleged ill-treatment of the applicant's relatives 138. The applicant complained under Article 3 of the Convention that his son, mother-in-law and sister-in-law had also experienced serious anguish and distress after having witnessed the incident leading to Chichek Mammadova's death. 139. The Court notes that the applicant himself was not a victim of the violations alleged in the present complaint. None of the applicant's relatives concerned by this complaint are parties to the present case or have personally lodged any complaints with the Court.", "It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. C. Alleged violation of the applicant's right to respect for his private life and home 140. The applicant complained under Article 8 of the Convention that, by evicting him and his family from their dwelling without a relevant court order, the domestic authorities had infringed his right to respect for his home and private life. 141. Even assuming that the issues complained of fall within the ambit of Article 8 and, in particular, that the dwelling in question could be considered the applicant's “home” within the meaning of this Convention provision, the Court considers that this complaint is inadmissible for the following reasons.", "It is true that, in the context of the criminal investigation into the circumstances of his wife's death, the applicant made the same or similar allegations concerning the alleged unlawfulness of the authorities' actions. However, within the scope and context of that investigation, those allegations could be relevant only for the purposes of establishing the State agents' responsibility for his wife's death. The investigation authorities had no competence to provide any redress in respect of any other matters and did not constitute an appropriate remedy for the alleged infringement of the applicant's right to respect for his home and private life. The Court notes that the applicant has not raised the present complaint before any other domestic authorities, and in particular the domestic civil courts, which would appear to be a more appropriate avenue of redress and where he could seek, inter alia, compensation for damage. 142.", "It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 143. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1.", "Pecuniary damage 144. The applicant claimed the following amounts in respect of pecuniary damage: (a) 20,025 euros (EUR) for various expenses in connection with his wife's funeral; (b) EUR 3,740 for loss of earnings which he had incurred because, after his wife's death, he had had to work less in order to spend more time at home with his children; (c) EUR 18,640 for expenses related to past and future medical treatment and special education for his son, who had allegedly become affected with psychiatric problems after his mother's death; and (d) EUR 28,000 for expenses related to past and future medical treatment for his sister-in-law who had allegedly developed a brain tumour as a result of the “psychological shock” experienced after her sister's death. 145. The Government noted that the applicant had submitted no evidence of any pecuniary damage alleged. 146.", "The Court observes that, indeed, no evidence has been submitted in support of the above claims. In any event, the Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore dismisses all of the above claims. 2. Non-pecuniary damage 147.", "The applicant claimed (a) EUR 80,000 in respect of non-pecuniary damage suffered as a result of his wife's death and the inadequate investigation; (b) EUR 25,000 in respect of non-pecuniary damage suffered by him as a result of the alleged beating by the police; (c) EUR 18,000 in respect of non-pecuniary damage suffered by his family members; and (d) in addition to all of the above, EUR 92,000 for all alleged violations of the Convention, in order to “make the Government treat human rights with more respect in the future”. 148. The Government submitted that the amounts claimed were excessive and that a finding of a violation would constitute, in itself, sufficient just satisfaction in the present case. 149. As for the amounts claimed in points (b) and (c) above, the Court notes that they relate to the complaints it has declared inadmissible.", "As for the amount claimed in point (d) above, the Court reiterates that it has consistently rejected any claims for punitive damages. For these reasons, the Court dismisses those claims. 150. As for the part of the claims relating to the non-pecuniary damage suffered as a result of the authorities' failure to comply with their obligations under Article 2 of the Convention, the Court considers that the distress suffered by the applicant cannot be compensated solely by the finding of a violation. Ruling on an equitable basis, the Court awards the applicant EUR 20,000 in respect of non-pecuniary damage.", "B. Costs and expenses 151. The applicant also claimed EUR 3,100 for various types of costs and expenses incurred in the domestic proceedings and EUR 2,500 for those incurred in the proceedings before the Court (including EUR 1,500 for legal fees, EUR 800 for translation expenses and EUR 200 for stationery and postal expenses). 152. The Government noted that the applicant submitted evidence in support of only a part of the claim for postal expenses, and did not submit any evidence in support of the remainder of the claims.", "153. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant submitted supporting documents only in respect of a part of the claim for postal expenses, in the form of postal receipts for the total amount of approximately EUR 70. The remaining claims were not supported by any documents. The Court further notes that, in connection with the present case, the applicant has received EUR 850 in legal aid from the Council of Europe.", "Accordingly, regard being had to the information in its possession and the above criteria, the Court finds that there is no call to award the applicant any additional amount for costs and expenses. C. Default interest 154. 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. FOR THESE REASONS, THE COURT 1. Declares unanimously the complaint under Article 2 admissible and the remainder of the application inadmissible; 2.", "Holds by five votes to two that there has been no violation of Article 2 of the Convention as regards the authorities' positive obligations to protect the right to life; 3. Holds unanimously that there has been a violation of Article 2 of the Convention as regards the authorities' failure to carry out an effective investigation with a view to establishing the extent of the State's responsibility for Chichek Mammadova's death; 4. Holds unanimously (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into New Azerbaijani manats at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses unanimously the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Søren NielsenChristos RozakisRegistrarPresident In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judges Spielmann and Malinverni is annexed to this judgment. C.L.R.S.N. DISSENTING OPINION OF JUDGES SPIELMANNAND MALINVERNI (Translation) We agree with the majority that there has in this case been a violation of the respondent State's obligation under Article 2 of the Convention to conduct an adequate and effective investigation with a view to establishing the extent of the State agents' responsibility for Chichek Mammadova's death. However, unlike the majority, we are of the opinion that in this case the authorities were also responsible for a violation of Article 2 on grounds of failure to comply with the positive obligation incumbent on them to protect the applicant's wife's right to life. In this connection we would like to reiterate that the first sentence of Article 2 enjoins the Contracting States to take appropriate steps to safeguard the lives of those within their jurisdiction (see L.C.B.", "v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998–III). This also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself (see Osman v. the United Kingdom, 28 October 1998, § 115, 1998–VIII; Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001–III; and Renolde v. France, no. 5608/05, § 81, 16 October 2008-). A failure to comply with this positive obligation will occur where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from self-harm and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Branko Tomašić and Others v. Croatia, no.", "46598/06, § 51, ECHR 2009-., and Tanribilir v. Turkey, no. 21422/93, § 70, 16 November 2000). The principal issue in the present case is whether at some point during the course of the operation the State agents became aware or ought to have become aware that Chichek Mammadova posed a real and immediate risk of suicide and, if so, whether they did all that could reasonably have been expected of them to prevent that risk. We would like to stress that, as a general rule, in any police operation the police are expected to place the flow of events under their control. In a situation where an individual threatens to take his or her own life in plain view of State agents and where this threat is an emotional reaction directly induced by the State agents' actions or demands, the latter should treat this threat with the utmost seriousness as constituting an imminent risk to that individual's life, regardless of how unexpected that threat might have been.", "In our opinion, in a situation such as the present case, if the State agents become aware of such a threat a sufficient time in advance a positive obligation arises under Article 2 requiring them to prevent the threat from materialising by any means which are reasonable and feasible in the circumstances. In the context of the present case, as soon as the State agents became aware of the threat, they could have tried to defuse the situation by verbally persuading Chichek Mammadova to refrain from any action threatening her life. Subsequently, as soon as the poor woman had poured kerosene over herself they should have intervened and prevented her from igniting it. Instead, the police officers did not take her threats seriously. One of them even offered her a box of matches, mockingly encouraging her to keep her word and set fire to herself (see paragraph 17).", "Incidentally, this detail shows, moreover, that the police officers were near the victim at the time. Only one police officer took any steps to put out the fire by wrapping Chichek Mammadova in a blanket. In addition, and this circumstance is of particular concern, none of the State agents attempted to call an ambulance or provide any assistance in transporting Chichek Mammadova to hospital. These shortcomings lead us to the conclusion that the police officers failed to comply with the positive obligations incumbent on them under Article 2, and that there has therefore been a violation of that provision." ]

[ "FOURTH SECTION CASE OF TEICĂ AND OTHERS v. ROMANIA (Application no. 2337/04 and 22 others –see appended list) JUDGMENT STRASBOURG 20 October 2016 This judgment is final but it may be subject to editorial revision In the case of Teică and Others v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Vincent A. De Gaetano, President,Egidijus Kūris,Gabriele Kucsko-Stadlmayer, judges,and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 29 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.", "The applications were communicated to the Romanian Government (“the Government”). THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings.", "In some of the applications, the applicants also raised complaints under other provisions of the Convention. THE LAW I. JOINDER OF THE APPLICATIONS 5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 6.", "The applicants complained principally that the length of the civil proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which reads as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 7. After examining all the material submitted to it, the Court considers that the complaints raised by the applicants S.C. Alma Bucovina S.R.L. (in application no. 26485/04), S.C. T & G Trading S.R.L.", "(in application no. 28121/04), Florian Mițoi (in relation to the proceedings between 13 June 2001 and 25 March 2005, in application no. 40757/06) and Federalcoop Constanța (concerning the proceedings between 26 April 2001 and 21 January 2011, in application no. 48595/10) must be dismissed as they either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. 8.", "As regards the other complaints raised under Article 6 § 1 of the Convention, the Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 9. In the leading case of Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, 26 November 2013, the Court already found a violation in respect of issues similar to those in the present case.", "10. Having regard to its case-law on the subject, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the remaining complaints and so it considers that in the instant case the length of proceedings was excessive and failed to meet the “reasonable time” requirement. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. III.", "REMAINING COMPLAINTS 12. Some of the applicants raised other complaints under various Articles of the Convention. 13. The Court has examined the applications listed in the appended table and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 14. 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.” 15. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the applicants the sums indicated in the appended table, with the exception of the applicants in applications nos. 2337/04 and 35783/09 who failed to respond to the Court’s letters of 4 December 2009 and 27 April 2015, respectively, inviting them to submit their just satisfaction claims in accordance with Rule 60 of the Rules of the Court.", "16. 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the complaints raised by the applicants S.C. Alma Bucovina S.R.L.", "(in application no. 26485/04), S.C. T & G Trading S.R.L. (in application no. 28121/04), Florian Mițoi (in relation to the proceedings between 13 June 2001 and 25 March 2005, in application no. 40757/06) and Federalcoop Constanța (concerning the proceedings between 26 April 2001 and 21 January 2011, in application no.", "48595/10) inadmissible. 3. Declares the remaining complaints concerning the excessive length of civil proceedings admissible, and the remainder of the applications inadmissible; 4. Holds that these complaints disclose a breach of Article 6 § 1 of the Convention concerning the excessive length of civil proceedings; 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6.", "Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 20 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan BakırcıVincent A. De GaetanoDeputy RegistrarPresident APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention (excessive length of civil proceedings) No. Application no.Date of introduction Applicant name Date of birth/ Date of registration Representative name and location Start of proceedings End of proceedings Total length Levels of jurisdiction Amount awarded for non-pecuniary damage per applicant / household (in euros)[1] 2337/04 05/11/2003 Marin Vergil TEICĂ 06/03/1925 05/04/1996 15/07/2003 7 years and 3 months 3 levels of jurisdiction 0 25482/04 23/04/2004 Ioan OPRIȘĂNESCU 04/07/1932 Mihai Paul Oprișănescu Bucharest 19/08/1999 13/10/2009 10 years and 1 month 3 levels of jurisdiction 1,200 26485/04 28/06/2004 Alexandru MANDIUC 08/04/1955 29/06/1999 01/06/2006 6 years and 11 months 1 level of jurisdiction 2,000 28121/04 28/04/2004 Georgeta ION 13/11/1955 Abdel Hady Hassan TAREK HASSAN 10/07/1959 Nicoleta Tatiana Popescu Bucharest 23/02/2001 14/06/2013 12 years and 3 months 2 levels of jurisdiction 2,400 32099/06 20/07/2006 Vergil CATANĂ 27/04/1962 08/11/2000 19/01/2006 5 years and 2 months 2 levels of jurisdiction 800 40757/06 18/09/2006 Florian MIŢOI 28/09/1953 19/09/2006 26/11/2010 4 years and 2 months 2 levels of jurisdiction 800 47515/06 28/09/2006 Claudiu Gheorghe TOMA 08/08/1969 26/04/1999 05/04/2006 6 years and 11 months 3 levels of jurisdiction 500 30883/07 05/06/2007 Household Vasile RIZEA 03/09/1953 Rodica RIZEA 15/05/1952 30/06/2000 18/01/2007 6 years and 6 months 2 levels of jurisdiction 1,800 23243/08 10/05/2008 Household Ion STAN-ENACHE 21/11/1928 Ioana STAN-ENACHE 10/02/1935 Stan Enache Lucian Las Vegas 09/09/1999 13/11/2007 8 years and 2 months 3 levels of jurisdiction 1,200 45244/08 09/09/2008 Household Jan CONSTANTIN 29/05/1951 Rada CONSTANTIN 02/12/1954 Cristina Georgeta Toma Bucharest 13/06/1996 12/03/2008 11 years and 9 months 3 levels of jurisdiction 3,000 35783/09 01/06/2009 Ioana PETRACHE 02/09/1949 31/10/2003 07/10/2005 pending 13/12/2013 More than 12 years and 8 months 1 level of jurisdiction 8 years and 2 months 2 levels of jurisdiction 0 37240/09 29/06/2009 Octavian GOŞA 31/03/1953 02/06/2000 12/12/2008 8 years and 6 months 1 level of jurisdiction 1,800 61891/09 04/08/2009 Traian POPOVICIU 13/08/1949 23/09/1998 16/02/2009 10 years and 4 months 2 levels of jurisdiction 2,400 65865/09 10/12/2009 Mugurel NIȚOIU 05/06/1966 Daniel Caraman Bucharest 09/01/2001 16/06/2009 8 years and 5 months 2 levels of jurisdiction 1,800 10460/10 14/12/2009 Sándor KOCSIS 24/04/1956 15/08/1997 12/06/2009 11 years and 9 months 2 levels of jurisdiction 3,000 48595/10 12/08/2010 FEDERALCOOP CONSTANŢA 02/04/1949 18/12/2003 07/07/2005 09/03/2010 07/06/2011 6 years and 2 months 3 levels of jurisdiction 5 years and 11 months 2 levels of jurisdiction 2,000 74375/10 06/12/2010 Mihai RADIANU 22/02/1954 Ulupinar Elena Roxana Bucharest 27/01/1995 10/06/2010 15 years and 4 months 2 levels of jurisdiction 3,600 6692/12 17/01/2012 Elena RÎPEANU 18/10/1967 07/11/2007 18/11/2011 4 years 2 levels of jurisdiction 800 9633/12 03/09/2011 Leonica POPESCU 22/07/1951 10/12/2003 08/03/2011 7 years and 2 months 3 levels of jurisdiction 900 56627/12 27/08/2012 Veronica IOANICESCU 12/07/1947 08/09/2003 29/02/2012 8 years and 5 months 3 levels of jurisdiction 900 29229/13 22/04/2013 Dragoș DUCIUC 11/09/1939 Ioan DUCIUC 15/04/1966 Rozalia RĂSTOACĂ 16/09/1960 Eufrosina DUCIUC 21/11/1968 27/01/2005 26/10/2012 7 years and 9 months 2 levels of jurisdiction 1,200 41128/13 17/06/2013 Zoltan BOROS 08/05/1975 Krisztina Kecseti Miercurea Ciuc 24/07/2007 19/12/2012 5 years and 4 months 2 levels of jurisdiction 800 76265/13 28/11/2013 Laurian SÎNGEAP 06/10/1956 27/12/2007 06/05/2009 03/09/2008 28/05/2013 4 years and 10 months 2 levels of jurisdiction 800 [1] Plus any tax that may be chargeable to the applicants." ]

[ "FIFTH SECTION CASE OF KARPENKO v. UKRAINE (Application no. 10559/03) JUDGMENT STRASBOURG 10 August 2006 FINAL 10/11/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Karpenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: MrP. Lorenzen, President,MrsS.", "Botoucharova,MrK. Jungwiert,MrV. Butkevych,MrsM. Tsatsa-Nikolovska,MrR. Maruste,MrJ.", "Borrego Borrego, judges,and Mrs C. Westerdiek, Section Registrar, Having deliberated in private on 10 July 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 10559/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vasiliy Ivanovich Karpenko (“the applicant”), on 20 March 2003. 2. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Z.Bortnovska, Mrs V.Lutkovska and Mr Y.Zaytsev.", "3. On 2 June 2004 the Court decided to communicate the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the non-enforcement of the judgment in the applicant’s favour to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4.", "On 1 April 2006 this case was assigned to the newly constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and resides in the town of Novogrodovka, Donetsk region, Ukraine. 6.", "In January 2002, the applicant instituted proceedings in the Novogrodovskiy Town Court of Donetsk Region against the Novogrodovskaya Mining Company No. 1/3 - a State-owned enterprise - to recover salary arrears. 7. On 28 February 2002 the Novogrodovskiy Town Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области) and awarded him UAH 2,655.70[1]. On 12 August 2002 the Court of Appeal of the Donetsk Region upheld the judgment of the first instance court.", "On 4 January 2003 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation. 8. On 16 September 2002 the Novogrodovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции) initiated the enforcement proceedings. 9. In March 2003, the applicant instituted proceedings in the Novogrodovskiy Town Court of the Donetsk Region against the Novogrodovskiy Town Bailiffs’ Service for failure to enforce the judgment of 28 February 2002 in his favour.", "On 9 April 2003 the Town Court rejected the applicant’s claim, finding that no fault had been committed by the Bailiffs’ Service. The court stated that the Bailiffs’ Service had acted properly in enforcing the judgment of 28 February 2002. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs’ Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. The court also stated that, according to the Law on the Introduction of a Moratorium on the Forced Sale of Property, on 26 December 2001 a ban on the forced sale of assets belonging to undertakings in which the State held at least 25% of the share capital had been introduced. On 9 June 2003 the Court of Appeal of the Donetsk Region upheld the decision of the first instance court.", "The applicant appealed against it in cassation. The parties did not submit any further information about these proceedings. 10. In February 2003 the Novogrodovskaya Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, the enforcement proceedings were transferred to the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции).", "11. In August 2004 the judgment in the applicant’s favour was enforced in full. 12. The applicant instituted proceedings in the Selidovskiy Town Court of the Donetsk region against the Selidovskiy Town Bailiffs’ Service claiming compensation for material and moral damage inflicted to him by the non-enforcement of the judgment in his favour. On 19 December 2004 the court decided on the case but the parties did not inform the Court about the outcome of the proceedings.", "On 25 January 2005 the court returned the applicant’s appeal against this decision as it was not submitted in compliance with procedural formalities prescribed by law. The applicant appealed against the decision of 25 January 2005. II. RELEVANT DOMESTIC LAW 13. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no.", "29439/02, § 17-22, 26 April 2005). THE LAW I. ADMISSIBILITY A. Complaints under Articles 2 § 1 and 4 § 1 of the Convention 14. The applicant complained that the existing situation infringed his right to life under Article 2 § 1 of the Convention, given his low standard of living. The Court reiterates that, according to its case-law, neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living (Wasilewski v. Poland (dec.), no.", "32734/96, 20 April 1999). Moreover, the applicant has not shown that he suffers such destitution as to put his life at risk (see Sokur v. Ukraine (dec.), no. 29439/02, 26 November 2002). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 15.", "The applicant next complained about a violation of Article 4 § 1 of the Convention, referring to the fact that he was forced to work without receiving remuneration. The Court notes that the applicant performed his work voluntarily and his entitlement to payment has never been denied. The dispute thus involves civil rights and obligations, but does not disclose any element of slavery or forced or compulsory labour within the meaning of this provision (see Sokur v. Ukraine (dec.), cited above). In these circumstances, the Court considers that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. B.", "Complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 16. The applicant complained about the length of the non-enforcement of the judgment in his favour. He invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.", "These Articles provide, insofar as relevant, as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ....” 17.", "The Government raised objections regarding the applicant’s victim status similar to those which the Court has already dismissed (see Shmalko v. Ukraine, no. 60750/00, §§ 30-34, 20 July 2004). The Court considers that the present objections must be rejected for the same reasons. 18. The Court concludes that the applicant’s complaint under Article 6 § 1 of the Convention about the delay in the enforcement of the judgment of the Novogrodovskiy Town Court 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. For the same reasons, the applicant’s complaint under Article 1 of Protocol No. 1 cannot be declared inadmissible. II.", "MERITS 19. The Government maintained that the judgment in the applicant’s favour was enforced in full. They further maintained that the responsibility of the State in this situation was limited to the organisation and proper conduct of enforcement proceedings and that the length of the enforcement proceedings had been caused by the critical financial situation of the debtor company and the energy sector of the Ukrainian economy in general. The Government contended that the Bailiffs’ Service performed all necessary actions and cannot be blamed for the delay. The regularity of the enforcement proceedings in the present case was confirmed by the domestic courts.", "The Government argued that the State could not be considered responsible for the debts of its enterprises and that the State annually allocated substantial amounts from its budget to cover part of the disability allowances and other compensatory payments to the workers in the mining industry. The Government finally maintained that the length of the enforcement was one year eleven months and fifteen days which cannot be considered as unreasonable. 20. The applicant disagreed. 21.", "The Court notes that the judgment in the applicant’s favour was not enforced for nearly two years. 22. The Court recalls that it has already found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases like the present application (see, Sokur v. Ukraine, cited above, §§ 30-37; Shmalko v. Ukraine, cited above, §§ 55-57). 23.", "Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 24. There has, accordingly, been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 26. The applicant claimed EUR 6,191 in respect of pecuniary and non-pecuniary damage. 27.", "The Government maintained that the applicant has not substantiated his claims. 28. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non-pecuniary damage, and awards him EUR 400 in this respect. B.", "Costs and expenses 29. The applicant did not submit any claim under this head within the set time-limit; the Court therefore makes no award in this respect. C. Default interest 30. 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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.", "Declares the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 400 (four hundred euros) in respect of non-pecuniary damage; (b) that the above amount shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekPeer LorenzenRegistrarPresident [1] At the material time around 422.17 euros (EUR)" ]

[ "CASE OF MATTHEWS v. THE UNITED KINGDOM (Application no. 24833/94) JUDGMENT STRASBOURG 18 February 1999 Matthews draft judgment1 In the case of Matthews v. the United Kingdom, The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol No. 11[1], and the relevant provisions of the Rules of Court[2], as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrsE. Palm,MrL.", "Ferrari Bravo,MrGaukur Jörundsson,MrG. Ress,MrI. Cabral Barreto,MrJ.-P. Costa,MrW. Fuhrmann,MrK. Jungwiert,MrM.", "Fischbach,MrsN. Vajić,MrJ. Hedigan,MrsW. Thomassen,MrsM. Tsatsa-Nikolovska,MrT.", "Panţîru,MrK. Traja,SirJohn Freeland, ad hoc judge, and also of Mrs M. de Boer-Buquicchio, Deputy Registrar, Having deliberated in private on 19 November 1998 and 20 and 21 January 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 26 January 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 24833/94) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under former Article 25 by Ms Denise Matthews on 18 April 1994.", "The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 3 of Protocol No. 1, taken alone or together with Article 14 of the Convention. 2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A[3], the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (former Rule 30).", "3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr R. Bernhardt, the President of the Court at the time, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 20 and 25 August 1998 respectively. 4.", "After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Sir Nicolas Bratza, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), MrL.Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr G. Ress, Mr J.-P. Costa and Mr M.Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr I. Cabral Barreto, Mr W. Fuhrmann, Mr K. Jungwiert, Mrs N. Vajić, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. Panţîru and Mr K. Traja (Rule 24 § 3 and Rule 100 § 4). Subsequently Sir Nicolas Bratza, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28).", "The Government accordingly appointed Sir John Freeland to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5. At the Court’s invitation (Rule 99), the Commission delegated one of its members, Mr J.-C. Soyer, to take part in the proceedings before the Grand Chamber. 6. In accordance with the President’s decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 19 November 1998.", "There appeared before the Court: (a)for the GovernmentMrM. Eaton, Foreign and Commonwealth Office,Agent,MrD. Anderson, Barrister-at-Law,Counsel,MsD. Collins, Cabinet Office Legal Advisers,MsC. Power, Foreign and Commonwealth Office,Advisers; (b)for the applicantMrM.", "Llamas, Barrister-at-Law,MrL. Baglietto, Barrister,MrF. Picardo, Barrister,Counsel,MrR. Benzaquen, Legislation Support Unit, Gibraltar,Adviser; (c)for the CommissionMrJ.-C. Soyer,Delegate,MsM.-T. Schoepfer,Secretary to the Commission. The Court heard addresses by Mr Soyer, Mr Llamas and Mr Anderson.", "THE FACTS I.the circumstances of the case 7. On 12 April 1994 the applicant applied to the Electoral Registration Officer for Gibraltar to be registered as a voter at the elections to the European Parliament. The Electoral Registration Officer replied on 25 April 1994: “The provisions of Annex II of the EC Act on Direct Elections of 1976 limit the franchise for European parliamentary elections to the United Kingdom [see paragraph 18 below]. This Act was agreed by all member States and has treaty status. This means that Gibraltar will not be included in the franchise for the European parliamentary elections.” II.relevant law in gibraltar A.Gibraltar and the United Kingdom 8.", "Gibraltar is a dependent territory of the United Kingdom. It forms part of Her Majesty the Queen’s Dominions, but not part of the United Kingdom. The United Kingdom parliament has the ultimate authority to legislate for Gibraltar, but in practice exercises it rarely. 9. Executive authority in Gibraltar is vested in the Governor, who is the Queen’s representative.", "Pursuant to a dispatch of 23 May 1969, certain “defined domestic matters” are allocated to the locally elected Chief Minister and his Ministers; other matters (external affairs, defence and internal security) are not “defined” and the Governor thus retains responsibility for them. 10. The Chief Minister and the Government of Gibraltar are responsible to the Gibraltar electorate via general elections to the House of Assembly. The House of Assembly is the domestic legislature in Gibraltar. It has the right to make laws for Gibraltar on “defined domestic matters”, subject to, inter alia, a power in the Governor to refuse to assent to legislation.", "B.Gibraltar and the European Community 11. The Treaty Establishing the European Community (“the EC Treaty”) applies to Gibraltar by virtue of its Article 227(4), which provides that it applies to the European territories for whose external relations a member State is responsible. The United Kingdom acceded to the precursor to the EC Treaty, the Treaty Establishing the European Economic Community of 25 March 1957 (“the EEC Treaty”), by a Treaty of Accession of 22 January 1972. 12. Gibraltar is excluded from certain parts of the EC Treaty by virtue of the Treaty of Accession.", "In particular, Gibraltar does not form part of the customs territory of the Community, with the result that the provisions on free movement of goods do not apply; it is treated as a third country for the purposes of the common commercial policy; it is excluded from the common market in agriculture and trade in agricultural products and from the Community rules on value-added tax and other turnover taxes, and it makes no contribution to the Community budget. European Community (“EC”) legislation concerning, inter alia, such matters as free movement of persons, services and capital, health, the environment and consumer protection applies in Gibraltar. 13. Relevant EC legislation becomes part of Gibraltar law in the same way as in other parts of the Union: regulations are directly applicable, and directives and other legal acts of the EC which call for domestic legislation are transposed by domestic primary or secondary legislation. 14.", "Although Gibraltar is not part of the United Kingdom in domestic terms, by virtue of a declaration made by the United Kingdom government at the time of the entry into force of the British Nationality Act 1981, the term “nationals” and derivatives used in the EC Treaty are to be understood as referring, inter alia, to British citizens and to British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar. C.The European Community and the European Parliament 15. The powers of the European Community are divided amongst the institutions set up by the EC Treaty, including the European Parliament, the Council, the Commission (“the European Commission”) and the Court of Justice. 16. Before 1 November 1993, the date of the entry into force of the Maastricht Treaty on European Union of 7 February 1992 (“the Maastricht Treaty”), Article 137 of the EEC Treaty referred to the “advisory and supervisory powers” of the European Parliament.", "Since 1 November 1993, the words “advisory and supervisory powers” have been removed and the role of the European Parliament has been expressed by Article 137 to be to “exercise the powers conferred upon it by [the] Treaty”. The principal powers of the European Parliament under the EC Treaty may now be summarised as follows: Article 138b provides that the European Parliament shall “participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 189b and 189c and by giving its assent or delivering advisory opinions”. Further, the second paragraph of Article 138b empowers the European Parliament to request the European Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing the Treaty. The reference in the first paragraph of Article 138b to “assent” refers to a procedure whereby the EC Treaty (for example, in Articles 8a(2) and 130d) provides for adoption of provisions by the Council on a proposal from the European Commission and after obtaining the assent of the European Parliament. The procedure is called the “assent procedure”.", "Article 144 provides for a motion of censure by the European Parliament over the European Commission whereby if a motion is carried by a two-thirds majority, representing a majority of the members, the members of the European Commission are required to resign as a body. Article 158 provides that the European Parliament is to be consulted before the President of the European Commission is nominated, and the members of the European Commission, once nominated, are subject as a body to a vote of approval by the European Parliament. The first paragraph of Article 189 provides: “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.” Article 189b provides: “1. Where reference is made in the Treaty to this Article for the adoption of an act, the following procedure[[4]] shall apply. 2.", "The Commission shall submit a proposal to the European Parliament and the Council. The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, shall adopt a common position. The common position shall be communicated to the European Parliament. The Council shall inform the European Parliament fully of the reasons which led it to adopt its common position. The Commission shall inform the European Parliament fully of its position.", "If, within three months of such communication, the European Parliament: (a) approves the common position, the Council shall definitively adopt the act in question in accordance with that common position; (b) has not taken a decision, the Council shall adopt the act in question in accordance with its common position; (c) indicates, by an absolute majority of its component Members, that it intends to reject the common position, it shall immediately inform the Council. The Council may convene a meeting of the Conciliation Committee referred to in paragraph 4 to explain further its position. The European Parliament shall thereafter either confirm, by an absolute majority of its component Members, its rejection of the common position, in which event the proposed act shall be deemed not to have been adopted, or propose amendments in accordance with subparagraph (d) of this paragraph; (d) proposes amendments to the common position by an absolute majority of its component Members, the amended text shall be forwarded to the Council and to the Commission which shall deliver an opinion on those amendments. 3. If, within three months of the matter being referred to it, the Council, acting by a qualified majority, approves all the amendments of the European Parliament, it shall amend its common position accordingly and adopt the act in question; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion.", "If the Council does not approve the act in question, the President of the Council, in agreement with the President of the European Parliament, shall forthwith convene a meeting of the Conciliation Committee. 4. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. 5.", "If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the European Parliament, acting by an absolute majority of the votes cast, and the Council, acting by a qualified majority, shall have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If one of the two institutions fails to approve the proposed act, it shall be deemed not to have been adopted. 6. Where the Conciliation Committee does not approve a joint text, the proposed act shall be deemed not to have been adopted unless the Council, acting by a qualified majority within six weeks of expiry of the period granted to the Conciliation Committee, confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with amendments proposed by the European Parliament. In this case, the act in question shall be finally adopted unless the European Parliament, within six weeks of the date of confirmation by the Council, rejects the text by an absolute majority of its component Members, in which case the proposed act shall be deemed not to have been adopted.", "7. The periods of three months and six weeks referred to in this Article may be extended by a maximum of one month and two weeks respectively by common accord of the European Parliament and the Council. The period of three months referred to in paragraph 2 shall be automatically extended by two months where paragraph 2(c) applies. 8. The scope of the procedure under this Article may be widened, in accordance with the procedure provided for in Article N(2) of the Treaty on European Union, on the basis of a report to be submitted to the Council by the Commission by 1996 at the latest.” Article 189c provides: “Where reference is made in this Treaty to this Article for the adoption of an act, the following procedure[[5]]shall apply: (a) The Council, acting by a qualified majority on a proposal from the Commission and after obtaining the opinion of the European Parliament, shall adopt a common position.", "(b) The Council’s common position shall be communicated to the European Parliament. The Council and the Commission shall inform the European Parliament fully of the reasons which led the Council to adopt its common position and also of the Commission’s position. If, within three months of such communication, the European Parliament approves this common position or has not taken a decision within that period, the Council shall definitively adopt the act in question in accordance with the common position. (c) The European Parliament may, within the period of three months referred to in point (b), by an absolute majority of its component Members, propose amendments to the Council’s common position. The European Parliament may also, by the same majority, reject the Council's common position.", "The result of the proceedings shall be transmitted to the Council and the Commission. If the European Parliament has rejected the Council’s common position, unanimity shall be required for the Council to act on a second reading. (d) The Commission shall, within a period of one month, re-examine the proposal on the basis of which the Council adopted its common position, by taking into account the amendments proposed by the European Parliament. The Commission shall forward to the Council, at the same time as its re-examined proposal, the amendments of the European Parliament which it has not accepted, and shall express its opinion on them. The Council may adopt these amendments unanimously.", "(e) The Council, acting by a qualified majority, shall adopt the proposal as re-examined by the Commission. Unanimity shall be required for the Council to amend the proposal as re-examined by the Commission. (f) In the cases referred to in points (c), (d) and (e), the Council shall be required to act within a period of three months. If no decision is taken within this period, the Commission proposal shall be deemed not to have been adopted. (g) The periods referred to in points (b) and (f) may be extended by a maximum of one month by common accord between the Council and the European Parliament.” Article 203 makes provision for the budget of the Community.", "In particular, after the procedure for making modifications and amendments to the draft budget, it is open to the European Parliament to reject the draft budget and to ask for a new budget to be submitted (Article 203(8)). Article 206 provides for parliamentary involvement in the process of discharging the European Commission in respect of the implementation of the budget. In particular, the European Parliament may ask to hear the European Commission give evidence on the execution of expenditure, and the European Commission is required to submit information to the European Parliament if so requested. Further, the European Commission is required to take all appropriate steps to act on the observations of the European Parliament in this connection. D.Elections and the European Parliament 17.", "Article 138(3) of the EEC Treaty provided, in 1976, that the European Parliament was to draw up proposals for elections. The Council was required to “lay down the appropriate provisions, which it [was to] recommend to Member States for adoption in accordance with their respective constitutional requirements”. Identical provision was made in the European Coal and Steel Community Treaty and the European Atomic Energy Community Treaty. 18. In accordance with Article 138(3), Council Decision 76/787 (“the Council Decision”), signed by the President of the Council of the European Communities and the then member States’ foreign ministers, laid down such provisions.", "The specific provisions were set out in an Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September 1976 (“the 1976 Act”), signed by the respective foreign ministers, which was attached to the Council Decision. Article 15 of the 1976 Act provides that “Annexes I to III shall form an integral part of this Act”. Annex II to the 1976 Act states that “The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom”. E.The application of the Convention to Gibraltar 19. By a declaration dated 23 October 1953, the United Kingdom, pursuant to former Article 63 of the Convention, extended the Convention to Gibraltar.", "Protocol No. 1 applies to Gibraltar by virtue of a declaration made under Article 4 of Protocol No. 1 on 25 February 1988. PROCEEDINGS BEFORE THE COMMISSION 20. Ms Matthews applied to the Commission on 18 April 1994.", "She alleged a violation of Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention. 21. The Commission declared the application (no. 24833/94) admissible on 16 April 1996.", "In its report of 29 October 1997 (former Article 31 of the Convention), it expressed the opinion that there had been no violation of Article 3 of Protocol No. 1 (eleven votes to six) and that there had been no violation of Article 14 of the Convention (twelve votes to five). The full text of the Commission’s opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment[6]. FINAL SUBMISSIONS TO THE COURT 22. The Government asked the Court to find that there had been no violation of the Convention.", "23. The applicant, for her part, asked the Court to find a breach of her rights under Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention. She also claimed an award of costs. THE LAW I.alleged violation of article 3 of Protocol no.", "1 24. The applicant alleged a breach of Article 3 of Protocol No. 1, which provides: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” 25. The Government maintained that, for three main reasons, Article 3 of Protocol No. 1 was not applicable to the facts of the present case or, in the alternative, that there had been no violation of that provision.", "A.Whether the United Kingdom can be held responsible under the Convention for the lack of elections to the European Parliament in Gibraltar 26. According to the Government, the applicant’s real objection was to Council Decision 76/787 and to the 1976 Act concerning elections to the European Parliament (see paragraph 18 above). That Act, which had the status of a treaty, was adopted in the Community framework and could not be revoked or varied unilaterally by the United Kingdom. The Government underlined that the European Commission of Human Rights had refused on a number of occasions to subject measures falling within the Community legal order to scrutiny under the Convention. Whilst they accepted that there might be circumstances in which a Contracting Party might infringe its obligations under the Convention by entering into treaty obligations which were incompatible with the Convention, they considered that in the present case, which concerned texts adopted in the framework of the European Community, the position was not the same.", "Thus, acts adopted by the Community or consequent to its requirements could not be imputed to the member States, together or individually, particularly when those acts concerned elections to a constitutional organ of the Community itself. At the hearing, the Government suggested that to engage the responsibility of any State under the Convention, that State must have a power of effective control over the act complained of. In the case of the provisions relating to the elections to the European Parliament, the United Kingdom Government had no such control. 27. The applicant disagreed.", "For her, the Council Decision and 1976 Act constituted an international treaty, rather than an act of an institution whose decisions were not subject to Convention review. She thus considered that the Government remained responsible under the Convention for the effects of the Council Decision and 1976 Act. In the alternative – that is, if the Council Decision and 1976 Act were to be interpreted as involving a transfer of powers to the Community organs – the applicant argued, by reference to Commission case-law, that in the absence of any equivalent protection of her rights under Article 3 of Protocol No. 1, the Government in any event retained responsibility under the Convention. 28.", "The majority of the Commission took no stand on the point, although it was referred to in concurring and dissenting opinions. 29. Article 1 of the Convention requires the High Contracting Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29).", "30. The Court notes that the parties do not dispute that Article 3 of Protocol No. 1 applies in Gibraltar. It recalls that the Convention was extended to the territory of Gibraltar by the United Kingdom’s declaration of 23 October 1953 (see paragraph 19 above), and Protocol No. 1 has been applicable in Gibraltar since 25 February 1988.", "There is therefore clearly territorial “jurisdiction” within the meaning of Article 1 of the Convention. 31. The Court must nevertheless consider whether, notwithstanding the nature of the elections to the European Parliament as an organ of the EC, the United Kingdom can be held responsible under Article 1 of the Convention for the absence of elections to the European Parliament in Gibraltar, that is, whether the United Kingdom is required to “secure” elections to the European Parliament notwithstanding the Community character of those elections. 32. The Court observes that acts of the EC as such cannot be challenged before the Court because the EC is not a Contracting Party.", "The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be “secured”. Member States’ responsibility therefore continues even after such a transfer. 33. In the present case, the alleged violation of the Convention flows from an annex to the 1976 Act, entered into by the United Kingdom, together with the extension to the European Parliament’s competences brought about by the Maastricht Treaty. The Council Decision and the 1976 Act (see paragraph 18 above), and the Maastricht Treaty, with its changes to the EEC Treaty, all constituted international instruments which were freely entered into by the United Kingdom.", "Indeed, the 1976 Act cannot be challenged before the European Court of Justice for the very reason that it is not a “normal” act of the Community, but is a treaty within the Community legal order. The Maastricht Treaty, too, is not an act of the Community, but a treaty by which a revision of the EEC Treaty was brought about. The United Kingdom, together with all the other parties to the Maastricht Treaty, is responsible ratione materiae under Article 1 of the Convention and, in particular, under Article 3 of Protocol No. 1, for the consequences of that Treaty. 34.", "In determining to what extent the United Kingdom is responsible for “securing” the rights in Article 3 of Protocol No. 1 in respect of elections to the European Parliament in Gibraltar, the Court recalls that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, for example, the above-mentioned United Communist Party of Turkey and Others judgment, pp. 18-19, § 33). It is uncontested that legislation emanating from the legislative process of the European Community affects the population of Gibraltar in the same way as legislation which enters the domestic legal order exclusively via the House of Assembly. To this extent, there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to “secure” the rights in Article 3 of Protocol No.", "1 in respect of European legislation, in the same way as those rights are required to be “secured” in respect of purely domestic legislation. In particular, the suggestion that the United Kingdom may not have effective control over the state of affairs complained of cannot affect the position, as the United Kingdom’s responsibility derives from its having entered into treaty commitments subsequent to the applicability of Article 3 of Protocol No. 1 to Gibraltar, namely the Maastricht Treaty taken together with its obligations under the Council Decision and the 1976 Act. Further, the Court notes that on acceding to the EC Treaty, the United Kingdom chose, by virtue of Article 227(4) of the Treaty, to have substantial areas of EC legislation applied to Gibraltar (see paragraphs 11 to 14 above). 35.", "It follows that the United Kingdom is responsible under Article 1 of the Convention for securing the rights guaranteed by Article 3 of Protocol No. 1 in Gibraltar regardless of whether the elections were purely domestic or European. B.Whether Article 3 of Protocol No. 1 is applicable to an organ such as the European Parliament 36. The Government claimed that the undertaking in Article 3 of Protocol No.", "1 was necessarily limited to matters falling within the power of the parties to the Convention, that is, sovereign States. They submitted that the “legislature” in Gibraltar was the House of Assembly, and that it was to that body that Article 3 of Protocol No. 1 applied in the context of Gibraltar. For the Government, there was no basis upon which the Convention could place obligations on Contracting Parties in relation to elections for the parliament of a distinct, supranational organisation, and they contended that this was particularly so when the member States of the European Community had limited their own sovereignty in respect of it and when both the European Parliament itself and its basic electoral procedures were provided for under its own legal system, rather than the legal systems of its member States. 37.", "The applicant referred to previous decisions of the European Commission of Human Rights in which complaints concerning the European Parliament were dealt with on the merits, so that the Commission in effect assumed that Article 3 of Protocol No. 1 applied to elections to the European Parliament (see, for example, Lindsay v. the United Kingdom, application no. 8364/78, decision of 8 March 1979, Decisions and Reports (DR) 15, p. 247, and Tête v. France, application no. 11123/84, decision of 9 December 1987, DR 54, p. 52). She agreed with the dissenting members of the Commission who did not accept that because the European Parliament did not exist when Protocol No.", "1 was drafted, it necessarily fell outside the ambit of Article 3 of that Protocol. 38. The majority of the Commission based its reasoning on this jurisdictional point. It considered that “to hold Article 3 of Protocol No. 1 to be applicable to supranational representative organs would be to extend the scope of Article 3 beyond what was intended by the drafters of the Convention and beyond the object and purpose of the provision.", "...[T]he role of Article 3 is to ensure that elections take place at regular intervals to the national or local legislative assembly, that is, in the case of Gibraltar, to the House of Assembly” (see paragraph 63 of the Commission’s report). 39. That the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court’s case-law (see, inter alia, the Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310, pp. 26-27, § 71, with further reference).", "The mere fact that a body was not envisaged by the drafters of the Convention cannot prevent that body from falling within the scope of the Convention. To the extent that Contracting States organise common constitutional or parliamentary structures by international treaties, the Court must take these mutually agreed structural changes into account in interpreting the Convention and its Protocols. The question remains whether an organ such as the European Parliament nevertheless falls outside the ambit of Article 3 of Protocol No. 1. 40.", "The Court recalls that the word “legislature” in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 53; see also the Commission’s decisions on the application of Article 3 of Protocol No. 1 to regional parliaments in Austria (application no.", "7008/75, decision of 12 July 1976, DR 6, p. 120) and in Germany (application no. 27311/95, decision of 11 September 1995, DR 82-A, p. 158)). 41. According to the case-law of the European Court of Justice, it is an inherent aspect of EC law that such law sits alongside, and indeed has precedence over, domestic law (see, for example, Costa v. ENEL, 6/64 [1964] ECR 585, and Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 106/77 [1978] ECR 629). In this regard, Gibraltar is in the same position as other parts of the European Union.", "42. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic of an effective political democracy (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 22, § 47, and the above-mentioned United Communist Party of Turkey and Others judgment, pp. 21-22, § 45). In the present case, there has been no submission that there exist alternative means of providing for electoral representation of the population of Gibraltar in the European Parliament, and the Court finds no indication of any.", "43. The Court thus considers that to accept the Government’s contention that the sphere of activities of the European Parliament falls outside the scope of Article 3 of Protocol No. 1 would risk undermining one of the fundamental tools by which “effective political democracy” can be maintained. 44. It follows that no reason has been made out which could justify excluding the European Parliament from the ambit of the elections referred to in Article 3 of Protocol No.", "1 on the ground that it is a supranational, rather than a purely domestic, representative organ. C.Whether the European Parliament, at the relevant time, had the characteristics of a “legislature” in Gibraltar 45. The Government contended that the European Parliament continued to lack both of the most fundamental attributes of a legislature: the power to initiate legislation and the power to adopt it. They were of the opinion that the only change to the powers and functions of the European Parliament since the Commission last considered the issue in the above-mentioned Tête decision (see paragraph 37 above) – the procedure under Article 189b of the EC Treaty – offered less than even a power of co-decision with the Council, and in any event applied only to a tiny proportion of the Community’s legislative output. 46.", "The applicant took as her starting-point in this respect that the European Commission of Human Rights had found that the entry into force of the Single European Act in 1986 did not furnish the European Parliament with the necessary powers and functions for it to be considered as a “legislature” (see the above-mentioned Tête decision). She contended that the Maastricht Treaty increased those powers to such an extent that the European Parliament was now transformed from a mere advisory and supervisory organ to a body which assumed, or assumed at least in part, the powers and functions of legislative bodies within the meaning of Article 3 of Protocol No. 1. The High Contracting Parties had undertaken to hold free elections at reasonable intervals by secret ballot, under conditions which would ensure the free expression of the opinion of the people in the choice of the legislature. She described the powers of the European Parliament not solely in terms of the new matters added by the Maastricht Treaty, but also by reference to its pre-existing powers, in particular those which were added by the Single European Act in 1986.", "47. The Commission did not examine this point, as it found Article 3 not to be applicable to supranational representative organs. 48. In determining whether the European Parliament falls to be considered as the “legislature”, or part of it, in Gibraltar for the purposes of Article 3 of Protocol No. 1, the Court must bear in mind the sui generis nature of the European Community, which does not follow in every respect the pattern common in many States of a more or less strict division of powers between the executive and the legislature.", "Rather, the legislative process in the EC involves the participation of the European Parliament, the Council and the European Commission. 49. The Court must ensure that “effective political democracy” is properly served in the territories to which the Convention applies, and in this context, it must have regard not solely to the strictly legislative powers which a body has, but also to that body’s role in the overall legislative process. 50. Since the Maastricht Treaty, the European Parliament’s powers are no longer expressed to be “advisory and supervisory”.", "The removal of these words must be taken as an indication that the European Parliament has moved away from being a purely consultative body, and has moved towards being a body with a decisive role to play in the legislative process of the European Community. The amendment to Article 137 of the EC Treaty cannot, however, be taken as any more than an indication as to the intentions of the drafters of the Maastricht Treaty. Only on examination of the European Parliament’s actual powers in the context of the European Community legislative process as a whole can the Court determine whether the European Parliament acts as the “legislature”, or part of it, in Gibraltar. 51. The European Parliament’s role in the Community legislative process depends on the issues concerned (see paragraphs 15-16 above).", "Where a regulation or directive is adopted by means of the consultation procedure (for example under Articles 99 or 100 of the EC Treaty) the European Parliament may, depending on the specific provision, have to be consulted. In such cases, the European Parliament’s role is limited. Where the EC Treaty requires the procedure set out in Article 189c to be used, the European Parliament’s position on a matter can be overruled by a unanimous Council. Where the EC Treaty requires the Article 189b procedure to be followed, however, it is not open to the Council to pass measures against the will of the European Parliament. Finally, where the so-called “assent procedure” is used (as referred to in the first paragraph of Article 138b of the EC Treaty), in relation to matters such as the accession of new member States and the conclusion of certain types of international agreements, the consent of the European Parliament is needed before a measure can be passed.", "In addition to this involvement in the passage of legislation, the European Parliament also has functions in relation to the appointment and removal of the European Commission. Thus, it has a power of censure over the European Commission, which can ultimately lead to the European Commission having to resign as a body (Article 144); its consent is necessary for the appointment of the European Commission (Article 158); its consent is necessary before the budget can be adopted (Article 203); and it gives a discharge to the European Commission in the implementation of the budget, and here has supervisory powers over the European Commission (Article 206). Further, whilst the European Parliament has no formal right to initiate legislation, it has the right to request the European Commission to submit proposals on matters on which it considers that a Community act is required (Article 138b). 52. As to the context in which the European Parliament operates, the Court is of the view that the European Parliament represents the principal form of democratic, political accountability in the Community system.", "The Court considers that whatever its limitations, the European Parliament, which derives democratic legitimation from the direct elections by universal suffrage, must be seen as that part of the European Community structure which best reflects concerns as to “effective political democracy”. 53. Even when due allowance is made for the fact that Gibraltar is excluded from certain areas of Community activity (see paragraph 12 above), there remain significant areas where Community activity has a direct impact in Gibraltar. Further, as the applicant points out, measures taken under Article 189b of the EC Treaty and which affect Gibraltar relate to important matters such as road safety, unfair contract terms and air pollution by emissions from motor vehicles and to all measures in relation to the completion of the internal market. 54.", "The Court thus finds that the European Parliament is sufficiently involved in the specific legislative processes leading to the passage of legislation under Articles 189b and 189c of the EC Treaty, and is sufficiently involved in the general democratic supervision of the activities of the European Community, to constitute part of the “legislature” of Gibraltar for the purposes of Article 3 of Protocol No. 1. D.The application of Article 56 of the Convention to the case 55. Article 56 §§ 1 and 3 of the Convention provide as follows: “1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the … Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.", "... 3. The provisions of [the] Convention shall be applied in such territories with due regard, however, to local requirements.” 56. The Government noted, without relying formally on the point, that two members of the Commission had emphasised the constitutional position of Gibraltar as a dependent territory in the context of Article 56 (formerly Article 63) of the Convention. 57. The applicant was of the view that the “local requirements” referred to in Article 56 § 3 of the Convention could not be interpreted so as to restrict the application of Article 3 of Protocol No.", "1 in the case. 58. The Commission, which found Article 3 not to be applicable on other grounds, did not consider this point. Two members of the Commission, in separate concurring opinions, both found that Article 56 of the Convention had a role to play in the case. 59.", "The Court recalls that in the Tyrer v. the United Kingdom judgment (25 April 1978, Series A no. 26, pp. 18-19, § 38) it found that before the former Article 63 § 3 could apply, there would have to be “positive and conclusive proof of a requirement”. Local requirements, if they refer to the specific legal status of a territory, must be of a compelling nature if they are to justify the application of Article 56 of the Convention. In the present case, the Government do not contend that the status of Gibraltar is such as to give rise to “local requirements” which could limit the application of the Convention, and the Court finds no indication that there are any such requirements.", "E.Whether the absence of elections to the European Parliament in Gibraltar in 1994 was compatible with Article 3 of Protocol No. 1 60. The Government submitted that, even if Article 3 of Protocol No. 1 could be said to apply to the European Parliament, the absence of elections in Gibraltar in 1994 did not give rise to a violation of that provision but instead fell within the State’s margin of appreciation. They pointed out that in the 1994 elections the United Kingdom had used a single-member constituency, “first-past-the-post” system.", "It would have distorted the electoral process to constitute Gibraltar as a separate constituency, since its population of approximately 30,000 was less than 5% of the average population per European Parliament seat in the United Kingdom. The alternative of redrawing constituency boundaries so as to include Gibraltar within a new or existing constituency was no more feasible, as Gibraltar did not form part of the United Kingdom and had no strong historical or other link with any particular United Kingdom constituency. 61. The applicant submitted that she had been completely deprived of the right to vote in the 1994 elections. She stated that the protection of fundamental rights could not depend on whether or not there were attractive alternatives to the current system.", "62. The Commission, since it did not find Article 3 of Protocol No. 1 to be applicable, did not examine whether or not the absence of elections in Gibraltar was compatible with that provision. 63. The Court recalls that the rights set out in Article 3 of Protocol No.", "1 are not absolute, but may be subject to limitations. The Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions do not curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the people in the choice of the legislature” (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 23, § 52).", "64. The Court makes it clear at the outset that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured – whether it be based on proportional representation , the “first-past-the-post” system or some other arrangement – is a matter in which the State enjoys a wide margin of appreciation. However, in the present case the applicant, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of the members of the European Parliament. The position is not analogous to that of persons who are unable to take part in elections because they live outside the jurisdiction, as such individuals have weakened the link between themselves and the jurisdiction. In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it.", "65. In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied. It follows that there has been a violation of that provision. ii.alleged violation of article 14 of the convention taken in conjunction with article 3 of protocol no.", "1 66. The applicant in addition alleged that, as a resident of Gibraltar, she had been the victim of discrimination contrary to Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 67. The Government did not address separately this complaint. 68. In view of its above conclusion that there has been a violation of Article 3 of Protocol No.", "1 taken alone, the Court does not consider it necessary to consider the complaint under Article 14 of the Convention. III.application of article 41 of the Convention 69. Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.Costs and expenses 70. The applicant did not claim any damages under Article 41, but she did claim costs and expenses before the Court totalling 760,000 French francs (FRF) and 10,955 pounds sterling (GBP), made up as to FRF 760,000 of her representative’s fees and expenses (750 hours at FRF 1,000 per hour) and FRF 10,000 disbursements, and as to GBP 10,955 of fees and expenses incurred in instructing solicitors in Gibraltar. She also claimed FRF 6,976 and GBP 1,151.50 in respect of travel expenses.", "The Government considered that the total number of hours claimed by the applicant’s main representative should be reduced by about half, and that the Gibraltar advisers’ claims should not have amounted to more than one-third of the sums actually claimed. They also challenged some of the travel expenses. 71. In the light of the criteria established in its case-law, the Court holds on an equitable basis that the applicant should be awarded the sum of GBP 45,000 from which should be deducted FRF 18,510 already paid by way of legal aid for fees and travel and subsistence expenses before the Court. B.Default interest 72.", "According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. FOR THESE REASONS, THE COURT 1.Holds by fifteen votes to two that there has been a breach of Article 3 of Protocol No. 1; 2.Holds unanimously that it is not necessary to consider the complaint under Article 14 of the Convention taken together with Article 3 of Protocol No. 1; 3.Holds unanimously (a)that the respondent State is to pay the applicant, within three months, for costs and expenses, 45,000 (forty-five thousand) pounds sterling together with any value-added tax that may be chargeable, less 18,510 (eighteen thousand five hundred and ten) French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment; (b)that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement; 4.Dismisses unanimously the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 February 1999.", "Luzius WildhaberPresident Maud de Boer-Buquicchio Deputy Registrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Sir John Freeland and Mr Jungwiert is annexed to this judgment. L.W. M.B. MATTHEWS v. THE UNITED KINGDOM JUDGMENT1 Joint DISSENTING OPINIONOF JUDGEs Sir John freeland and jungwiert 1. We voted against the finding of a breach of Article 3 of Protocol No.", "1, essentially for the following reasons. 2. In the first place, and as a general point, the view has throughout weighed heavily with us that a particular restraint should be required of the Court when it is invited, as it is here, to pronounce on acts of the European Community or consequent to its requirements, especially when those acts relate to a matter so intimately concerned with the operation of the Community as elections to one of its constitutional organs. 3. Secondly, as to the interpretation to be given to Article 3 of Protocol No.", "1, we have considered that the view taken in the Commission, by the substantial majority of eleven votes to six, that “the role of Article 3 is to ensure that elections take place at regular intervals to the national or local legislative assembly” has much to commend it. It is, as reference to the travaux préparatoires confirms, a view squarely within the intention of the drafters (who, it should be recalled, were working at a time when about half the countries of Europe – including some in Western Europe – were deprived of free elections). Further, by confining the ambit of the provision to bodies within the domestic area and excluding any supranational representative organ, it avoids the uncertainty and invidiousness involved in analysis by an outside body of the characteristics of such an organ, which as experience has shown are likely to be neither straightforward nor static. 4. If, however, it is justifiable, on the familiar basis that “the Convention is a living instrument which must be interpreted in the light of present-day conditions”, to include within the scope of Article 3 of Protocol No.", "1 a body which was plainly not within the contemplation of the drafters, if only because no such body existed at the time, it becomes necessary to consider whether the body concerned is properly to be regarded as “the legislature” (emphasis supplied) within the meaning of the provision. That question may require, in turn, two others. First, is the body a legislature at all? And, secondly, if it is, is it the legislature for the State or territory in question – in this case, Gibraltar? 5.", "As to the first of these questions, it is in our view intrinsic to the notion of a “legislature” that the body concerned should have the power to initiate legislation and to adopt it (subject, in the case of some national Constitutions, to the requirement of the assent of the head of State). If this power is lacking, the fact that the body may have other powers often exercisable by national legislatures (for example, powers in relation to censure of the executive or to the budget) is not enough to remedy the deficiency. The existence of such other powers may enhance the body’s entitlement to be styled as a parliament and its role in promoting an “effective political democracy”. But the facts that it is so styled and has such a role are not to be regarded as requiring it to be treated as a “legislature” unless it has in itself the necessary legislative power. 6.", "With the vestigial and for present purposes insignificant exception of its power under Article 95(3) of the European Coal and Steel Community Treaty, the European Parliament has no power to initiate and adopt legislation. Even in the case of the so-called co-decision procedure (Article 189b) introduced by the Maastricht Treaty – a procedure to which much significance was attached on behalf of the applicant –, while the European Parliament has potential influence on the content of legislation and a power to block legislation to which it objects, it has neither the sole right to adopt legislation nor the power to force the Council to adopt legislation which the Council does not want. Nor does the procedure provide the Parliament with any opportunity to initiate legislation itself. 7. Thus, even if, as paragraph 50 of the judgment says, the Maastricht Treaty’s removal of the words “advisory and supervisory” to describe the powers of the European Parliament “must be taken as an indication that the European Parliament has moved away from being a purely consultative body, and has moved towards being a body with a decisive role to play in the legislative process of the European Community”, as matters stand (and stood at the time of the 1994 elections) that Parliament has not in our view reached a stage where it can of itself properly be regarded as constituting a legislature.", "To borrow the words of Professor Dashwood in his inaugural address at the University of Cambridge in November 1995, “the Community has no legislature, but a legislative process in which the different political institutions have different parts to play”. In fact, of the institutions of the Community it is the Council of Ministers which performs the functions most closely related to those of a legislature at national level. 8. If it had become necessary to consider whether, on the hypothesis that it was in the true sense a legislature, the European Parliament qualified to be treated as “the legislature” for Gibraltar within the meaning of Article 3 of Protocol No. 1, so that Gibraltar elections were required to be held to it as well as to the local House of Assembly, we would have been influenced in the contrary direction by the exclusion of Gibraltar from substantial parts of the EC Treaty and the limited extent of the areas of Community competence in which the Parliament has, in any event, a significant role (as it does not in the areas of foreign and security policy, justice and home affairs, the implementation of the common commercial policy or the negotiation of trade agreements with other States or international organisations; or in the field of economic and monetary union).", "We would have been similarly influenced by the small number of measures adopted under the Article 189b procedure and applicable to Gibraltar. But, given the negative view which we have reached on the qualifications of the European Parliament to be regarded as a legislature, there is no need for us to proceed to a conclusion on the further question. 9. We would add only that, to put it no higher, we see a certain incongruity in the branding of the United Kingdom as a violator of obligations under Article 3 of Protocol No. 1 when the exclusion from the franchise effected multilaterally by the 1976 Decision and Act – in particular, Annex II – was at that time wholly consistent with those obligations (because on no view could the Assembly, as it was then known, be regarded as a legislature); when at no subsequent time has it been possible for the United Kingdom unilaterally to secure the modification of the position so as to include Gibraltar within the franchise; and when such a modification would require the agreement of all the member States (including a member State in dispute with the United Kingdom about sovereignty over Gibraltar).", "[1]Notes by the Registry 1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998. [2]3. Since the entry into force of Protocol No.", "11, which amended Article 19, the Court has functioned on a permanent basis. [3] [3]1. Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.", "[4]1. This procedure is required to be used, inter alia, in connection with Article 49 of the EC Treaty (measures for the free movement of workers), Article 54(2) (programme in connection with freedom of establishment), Article 57(2) (mutual recognition of diplomas in connection with the right of establishment), Article 66 (mutual recognition of diplomas in connection with the freedom to provide services), Article 100a(1) (approximation of provisions in connection with the internal market) and Article 130s(3) (action programmes in connection with the environment). [5]1. This procedure is required to be used, inter alia, in connection with Article 6 (rules to prohibit discrimination on grounds of nationality), Article 75(1) (transport policy) Article 118a (social policy) and Articles 130l-130k (framework programmes in connection with the environment). [6]1.", "Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry." ]

[ "THIRD SECTION CASE OF KHALAF AND OTHERS v. RUSSIA (Applications nos. 67967/13 and 3 others - see appended list) JUDGMENT STRASBOURG 30 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Khalaf and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Branko Lubarda, President,Pere Pastor Vilanova,Georgios A. Serghides, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 9 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos. 67967/13 and 3 others indicated in the appended table) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals.", "2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 8 March 2016 and 1 December 2016 notice of the applications was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.", "The list of the applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained under Article 5 § 1 of the Convention about their detention extended several times beyond the maximum statutory time period. They also complained under Article 5 § 3 of the Convention about excessive length of their detention. THE LAW I. JOINDER OF THE APPLICATIONS 6.", "Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 7. The applicants complained that their detention in excess of the maximum statutory period was in breach of Article 5 § 1 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person.", "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (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 ...” 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 8. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits 9. The Court has previously examined the matter of pre-trial detention being extended for the purpose of studying the case file. It found that, in the absence of an explicit norm providing for repeated extensions of the authorised detention period, any such extension in excess of the maximum statutory time limit would be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 of the Convention (see Tsarenko v. Russia, no. 52235/09, §§ 59-63, 3 March 2011, and Suslov v. Russia, no.", "2366/07, §§ 75‑79, 29 May 2012). 10. Having regard to its established case-law, the Court finds that there has been a violation of Article 5 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 11.", "The applicants complained about their unreasonably lengthy detention in breach of Article 5 § 3 of the Convention. “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.” 12. The Court notes that these complaints are linked to the ones examined above and must therefore likewise be declared admissible.", "13. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case. 14. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints.", "Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive. 15. Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 3 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 16.", "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.” 17. Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remaining claims for just satisfaction submitted by some of the applicants as unsubstantiated and/or unrelated to the violations of the Convention found by the Court. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3.", "Holds that there has been a violation of Article 5 § 1 of the Convention; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5. Holds (a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Stephen PhillipsBranko LubardaRegistrarPresident APPENDIX No. Application no. and date of introduction Applicant name date of birth place of residence nationality Represented by Period of detention Duration of detention Just satisfaction claims Award under Article 41 67967/13 07/10/2013 Khaled KHALAF 01/01/1962 St Petersburg Russian 20/05/2011 – 03/06/2015 4 years and 15 days Non-pecuniary damages: EUR 58,500 Costs and legal expenses: EUR 2,000 to each of three advocates who represented him in the domestic proceedings (supported by the certificate of the advocates’ collegium that the applicant paid one of the advocates RUB 1,520,000 RUB or ~ EUR 24,000 on the date of the certificate) Non-pecuniary damages: EUR 9,750 (nine thousand seven hundred and fifty euros) 79049/13 26/11/2013 Sergey Viktorovich MAKHIN 20/02/1981 Krasnoznamensk Russian Inga Anatolyevna ZATEYKINA 22/03/2011 – 20/09/2016 5 years, 6 months and 1 day Pecuniary damages: EUR 11,190.38 (allegedly spent by the applicant on food and other needs while in detention; supported by a number of payment receipts) EUR 24,667.42 (loss of salary) Non-pecuniary damages: EUR 20,000 Costs and legal expenses: - legal services to represent the applicant before the Court: EUR 3,045.46 (supported by a legal services’ agreement and payment receipt) - postal services: EUR 88.63 (supported by payment receipts) Total: EUR 3,134.09 Non-pecuniary damages: EUR 9,750 (nine thousand seven hundred and fifty euros) Costs and legal expenses: EUR 3,134.09 (three thousand one hundred and thirty-four euros and nine cents) 25038/14 22/03/2014 Aleksey Veniaminovich LITVINOV 14/05/1987 Yuzhno-Sakhalinsk Russian Yevgeniy Aleksandrovich YEFIMCHUK 03/06/2011 – 18/09/2014 3 years, 5 months and 17 days Pecuniary damages: RUB 1,350,000 (EUR 19,433) (loss of salary) Non-pecuniary damages: EUR 100,000 Costs and expenses: RUB 936,031 (EUR 13,474) including - legal services of lawyers representing the applicant during the preliminary investigation and at the court extensions of detention – RUB 850,000 (EUR 12,235); - translator’s services – RUB 5,850 (EUR 84); - an expert review for the criminal proceedings – RUB 75,500; - postal services – RUR 4,681 (EUR 67) Non-pecuniary damages: EUR 9,750 (nine thousand seven hundred and fifty euros) Costs and legal expenses: EUR 151 (one hundred and fifty-one euros). 8108/15 26/01/2015 Ilshat Midkhatovich IVANOV 17/01/1970 Ulan-Ude Russian Oleg Anatolyevich DYMCHIKOV 14/09/2012 – unknown (presumably until 03/03/2015) Approximately 2 years, 5 months and 18 days Non-pecuniary damages: EUR 50,000 Non-pecuniary damages: EUR 9,750 (nine thousand seven hundred and fifty euros)" ]

[ "COURT (PLENARY) CASE OF NÖLKENBOCKHOFF v. GERMANY (Application no. 10300/83) JUDGMENT STRASBOURG 25 August 1987 In the Nölkenbockhoff case[*], The European Court of Human Rights, taking its decision in plenary session pursuant to Rule 50 of the Rules of Court and composed of the following judges: Mr. R. Ryssdal, President, Mr. J. Cremona, Mr. Thór Vilhjálmsson, Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Mr. F. Gölcüklü, Mr. F. Matscher, Mr. J. Pinheiro Farinha, Mr. L.-E. Pettiti, Sir Vincent Evans, Mr. R. Macdonald, Mr. C. Russo, Mr. R. Bernhardt, Mr. J. Gersing, Mr. A. Spielmann, Mr. J. De Meyer, Mr. N. Valticos, and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar, Having deliberated in private on 26 February and 24 June 1987, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights (\"the Commission\") on 28 January 1986, within the three-month period laid down by Article 32 § 1 and Article 47 (art.", "32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (\"the Convention\"). It originated in an application (no. 10300/83) against the Federal Republic of Germany lodged with the Commission under Article 25 (art. 25) by a national of that State, Mrs. Martha Nölkenbockhoff, on 7 February 1983.", "The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Federal Republic of Germany recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 2 (art.", "6-2). 2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, Mrs. Nölkenbockhoff stated that she wished to take part in the proceedings pending before the Court and designated the lawyer who would represent her (Rule 30). 3. On 28 January 1986, the President of the Court decided that in the interests of the proper administration of justice this case and the Lutz and Englert cases should be considered by the same Chamber (Rule 21 § 6).", "The Chamber of seven judges to be constituted included, as ex officio members, Mr. R. Bernhardt, the elected judge of German nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 19 March 1986, in the presence of the Registrar, the President drew by lot the names of the other five members, namely Mr. F. Matscher, Mr. J. Pinheiro Farinha, Mr. L.-E. Pettiti, Sir Vincent Evans and Mr. R. Macdonald (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). 4.", "After assuming the office of President of the Chamber (Rule 21 § 5), Mr. Ryssdal consulted, through the Deputy Registrar, the Agent of the German Government (\"the Government\"), the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure. On 2 April, he directed that the Agent and the applicant’s lawyer should have until 1 July 1986 to file memorials and that the Delegate should be entitled to reply in writing within two months (Rule 37 § 1). The President twice extended the first of these time-limits - on 3 July until 31 October, and on 10 November until 21 November 1986. 5. The applicant’s memorial - drafted in German, with the President’s leave (Rule 27 § 3) - was lodged with the registry on 1 July 1986 and the Government’s on 19 November.", "6. On 29 November, the Chamber decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 50). 7. On 15 December, the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing. 8.", "The next day, having consulted - through the Deputy Registrar - the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed that the oral proceedings should open on 23 February 1987 (Rule 38). On 6 February, he granted the members of the Government’s delegation leave to speak in German (Rule 27 § 2). 9. The hearing was held in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting immediately beforehand.", "There appeared before the Court: - for the Government Mrs. I. Maier, Ministerialdirigentin, Federal Ministry of Justice, Agent, Mr. H. Stöcker, Ministerialrat, Federal Ministry of Justice, Mr. W. Beitlich, Oberstaatsanwalt, Advisers; - for the Commission Mr. A. Weitzel, Delegate; - for the applicant Mr. J. Bergemann, Rechtsanwalt, Counsel. The Court heard addresses by Mrs. Maier for the Government, by Mr. Weitzel for the Commission and by Mr. Bergemann for the applicant, as well as their replies to its questions. 10. On various dates between 9 February and 22 May 1987, the Commission, the Government and the applicant filed a number of documents and written comments either at the Court’s request or of their own motion.", "AS TO THE FACTS I. PARTICULAR CIRCUMSTANCES OF THE CASE 11. Mrs. Martha Nölkenbockhoff, a German national, is the widow and heir of Mr. Theodor Nölkenbockhoff, who died on 13 November 1981. She lives in Selm-Bork. 12.", "Her husband was a senior manager in a holding company, Stumm AG, whose trading activities centred on iron, steel and fuel, including motor fuel. He joined the firm on 1 July 1967 and subsequently held a number of key positions in it. On 25 October 1974, Stumm AG ceased payments by reason of insolvency and asked the Essen District Court (Amtsgericht) to set in motion composition proceedings (Vergleichsverfahren). On 13 November 1974, Mr. Nölkenbockhoff was arrested under a warrant issued by the Essen District Court on 11 November; he was suspected among other things of bankruptcy offences. Other senior managers in the company were also arrested.", "13. On 17 May 1976, the indictment, which was 489 pages long, was served on Mr. Nölkenbockhoff and four co-defendants. The trial hearings began on 29 October 1976 before the 6th Criminal Chamber (6. Grosse Strafkammer) of the Essen Regional Court (Landgericht). They lasted until 11 July 1980, two or three hearings being held each week.", "The court heard evidence from hundreds of witnesses, and several thousand documents were read out. The applicant’s husband was defended by two counsel, one of whom was assigned by the court. 14. On 11 July 1980, the Regional Court delivered its judgment, which ran to 579 pages. Mr. Nölkenbockhoff was found guilty inter alia on several charges of breach of trust (Untreue), criminal bankruptcy (Bankrott) and fraud (Betrug), and given an aggregate sentence of eight years’ imprisonment.", "His four co-defendants were also sentenced to prison terms - two of them, for more or less identical offences and a few additional ones, to nine years, nine months and to eight years, six months respectively; the other two, for aiding and abetting, to four years, three months each. In respect of a series of fraud charges, the Regional Court stayed the proceedings under Article 154 of the Code of Criminal Procedure (see paragraph 23 below); and it acquitted Mr. Nölkenbockhoff and two of his co-defendants on a number of other charges. In determining the sentences, the Regional Court took into account as extenuating circumstances the length of the proceedings and, in respect of the applicant’s husband, his detention on remand for some three years; this period was deducted from the total sentence. 15. Mr. Nölkenbockhoff entered an appeal on points of law on the same day that judgment was given.", "After receiving the text of the judgment on 5 October 1981, he filed - on 19 October - full pleadings which ran to 735 pages with 94 appendices. The Federal Court of Justice (Bundesgerichtshof) had not given a decision by the time he died on 13 November, so that the proceedings in respect of Mr. Nölkenbockhoff came to an end without any decision being taken on his appeal. Three of the co-defendants, who had likewise challenged the Regional Court’s judgment, later withdrew their appeals on points of law; the appeal lodged by the fourth person convicted, Mr. M, was dismissed by the Federal Court on 7 July 1982 as being manifestly ill-founded. 16. Having been arrested and detained on remand on 13 November 1974 (see paragraph 12 above), Mr. Nölkenbockhoff was released on bail at the end of March 1977 in order to undergo a bile-duct operation.", "He was re-arrested on 21 February 1979 but freed by the Hamm Court of Appeal (Oberlandesgericht) on 23 March 1979, the court holding that there was no valid ground for quashing the March 1977 order suspending execution of the arrest warrant. On 30 April 1980, the Essen Regional Court ordered his re-arrest and, at the same time, the arrest of all the co-defendants; as the public prosecutor had made his final submissions, calling for heavy sentences, the court held that the measures taken to prevent the defendants absconding were no longer sufficient. On 26 June 1981, Mr. Nölkenbockhoff was released on health grounds. 17. In written pleadings dated 1 December 1981, the applicant, as her deceased husband’s sole heir, sought orders that the Treasury should bear the necessary costs and expenses (notwendige Auslagen) incurred by her late husband in connection with his conviction by the Regional Court and that the estate should be paid compensation for his detention pending trial.", "In the alternative, she requested the Regional Court to adjourn a decision on her applications until such time as the Federal Court of Justice had given judgment on the appeal brought by the co-defendant Mr. M. On 5 March 1982, the Essen Regional Court found against Mrs. Nölkenbockhoff. Its decision read as follows: \"... The applications are admissible ... but ill-founded. Where proceedings are terminated by reason of a defendant’s death, his necessary costs and expenses are normally borne by the Treasury, but this does not apply where, were it not for this technical bar, the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld (wenn es bei Wegdenken des Verfahrenshindernisses annähernd sicher zu erwarten war, dass es zur Verurteilung des Angeklagten gekommen bzw. bei einer Verurteilung geblieben wäre).", "This was so in the instant case. The defendant had already been found guilty, in a judgment that had not become final, after lengthy court proceedings in a trial (Hauptverhandlung) lasting more than three and a half years. The judgment convicting the three co-defendants ..., who were likewise sentenced to several years’ imprisonment, has become final. The co-defendant M is maintaining his appeal on points of law. The submissions made by the defence in its full pleadings afford no reason to suppose that the defendant would have been acquitted had the proceedings continued.", "The pleas alleging procedural defects (formelle Rügen) - even assuming them to be well-founded - would have been material to the decision to be taken in the instant case only if, in the event of a new trial, a different verdict on the merits would have been expected, that is to say an acquittal. The fact that [three of] the defendants ... have withdrawn their appeals on points of law, thereby confirming the judgment against them, argues decisively in favour of the correctness (materielle Richtigkeit) of the judgment. As to the plea alleging a breach of substantive law (materielle Rüge), the defence’s submissions again provide nothing to support the hypothesis that the proceedings were moving towards an acquittal. The quotations from the trial court’s judgment are taken out of context, do not cover the considerations (Erörterungen) subsequently set out by that court in the reasons for its judgment and are accordingly not consistent with its assessment of the case as a whole. For the same reasons the court declines to award compensation for the time spent in detention on remand, pursuant to section 6(1)(2) of the Criminal Proceedings (Compensation) Act (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen) [see paragraph 26 below].", "Nor, to the extent that the proceedings were provisionally stayed under Article 154 of the Code of Criminal Procedure [see paragraph 23 below], are there any grounds for ordering the Treasury to pay the defendant’s necessary costs and expenses, because in view of the reasons given for the judgment, it was much more likely, having regard to the adverse financial position of the Stumm holding company, that if the proceedings had continued, the defendant would have been convicted on the counts in question (weil nach den Ausführungen im Urteil es bei der ungünstigen wirtschaftlichen Situation des Stummkonzerns bei einer Fortsetzung des Verfahrens wesentlich wahrscheinlicher war, dass es insoweit zu einer Verurteilung des Angeklagten gekommen wäre). That being so, the court does not consider it necessary to defer judgment until a decision has been given on the co-defendant M’s appeal on points of law. ....\" 18. The applicant appealed to the Hamm Court of Appeal against that decision on 11 March 1982. In written pleadings dated 18 March, she challenged, inter alia, the Regional Court’s finding that, had her husband not died, he \"would almost certainly have been convicted or his conviction almost certainly have been upheld\".", "She claimed that that statement was erroneous and infringed the Basic Law (Grundgesetz) and Article 5 (paragraphs 1 and 3) (art. 5-1, art. 5-3) and Article 6 (paragraphs 1 and 2) (art. 6-1, art. 6-2) of the Convention.", "The court caused the conviction to \"become final\" posthumously, thereby prejudicing her as the defendant’s widow with regard to the rights relied on and, in particular, entailing a violation of Article 6 § 2 (art. 6-2) of the Convention. It was as if it were sought to obtain a final (abschliessend) conviction of the deceased by a side wind in the form of a decision as to costs although no final (rechtskräftig) judgment had been handed down confirming that he had committed the offences with which he was charged. The Regional Court likewise disregarded the presumption of innocence in stating that the grounds of appeal afforded no reason to suppose that the defendant would have been acquitted. It ought at most to have decided, after a summary examination of the case, that the appeal on points of law had some prospects of success, or it should have refrained from expressing a view.", "It was precisely for that reason that the applicant had requested an adjournment to await the judgment of the Federal Court of Justice in the appeal proceedings brought by one of the co-defendants. The court, however, had prejudged the Federal Court’s decision by holding that the plea alleging a breach of substantive law again provided nothing to support the hypothesis of an acquittal: the court should have known that vital points in Mr. Nölkenbockhoff’s appeal were also relied on by the co-defendant M. The applicant pointed out in addition that from the outset her husband had denied having committed any offences and had indeed been acquitted on several counts. In the light, inter alia, of Article 6 § 2 (art. 6-2) of the Convention, it therefore had to be assumed that in the event of a new trial he would have been acquitted completely. Since criminal law was based on the principle of individual guilt, it was quite simply unacceptable - and, once again, contrary to Article 6 § 2 (art.", "6-2) - to judge the deceased by the conduct of three of the co-defendants. In any case, the fact that those co-defendants had withdrawn their appeals on points of law could not be regarded as an admission of guilt; besides, they had held responsibilities within Stumm AG different from those of her husband. 19. The public prosecutor’s office in Bochum and the principal public prosecutor’s office (Generalstaatsanwaltsschaft) at the Hamm Court of Appeal, to which Mrs. Nölkenbockhoff’s appeal (sofortige Beschwerde) had been forwarded for any comments, contended that the appeal should be dismissed. On 28 December 1981, the Bochum public prosecutor submitted that, having regard to the state of the proceedings, there was every likelihood (hohe Wahrscheinlichkeit) that the conviction would have been upheld.", "The principal public prosecutor gave his opinion on 11 June 1982. He considered that an assessment of the likely outcome of the proceedings (Prüfung des mutmasslichen Verfahrensausgangs), having regard to the reasons given in the judgment of the Essen Regional Court and the grounds of the appeal on points of law, could lead to only one conclusion. It could be assumed - and, indeed, had to be - that if the proceedings had been continued, the defendant’s conviction would have been upheld. The principal public prosecutor took the view that the outcome of the appeal brought by the co-defendant M and still pending before the Federal Court of Justice was of some relevance in assessing the likely outcome of the proceedings concerning Mr. Nölkenbockhoff, who, according to the aforementioned judgment, had committed his various offences in concert (Mittäterschaft) with the said co-defendant. 20.", "The applicant, to whom the public prosecutors’ observations had been communicated, replied on 6 July 1982. She stated, inter alia, that there were considerable dissimilarities between M and her husband as regards the charges against them, their behaviour and the grounds of their appeals; and as evidence of this she pointed to the indictment, the judgment convicting the defendants, and the appeals. 21. The Hamm Court of Appeal dismissed the action on 14 July 1982. It left open the question whether, in the event of a defendant’s death before the final conclusion (rechtskräftiger Abschluss) of criminal proceedings, a decision such as that sought by Mrs. Nölkenbockhoff could be taken, by analogy, under Article 467 § 1 of the Code of Criminal Procedure and section 6(1)(2) of the Criminal Proceedings (Compensation) Act (see paragraphs 24-26 below).", "And it added: \"Even assuming such decisions are possible (Zulässigkeit), the assessment of the probable outcome of the trial, which must be made in both instances, leads to the conclusion that if the proceedings had been pursued until a final decision was handed down, the former defendant’s conviction would almost certainly (mit annähernder Sicherheit) have been upheld. In order to avoid repetition, reference is made to the reasons given for the contested decision, which are valid (zutreffend). It should be noted in addition that the appeal on points of law of the co-defendant M was subsequently dismissed, on 7 July 1982, by the Federal Court of Justice ... as being manifestly ill-founded. That fact is of particular importance in assessing the prospects of success which ... Mr. Nölkenbockhoff’s appeal would have had, because according to the reasons given for the judgment of 11 July 1980, the offences of which [he] was convicted at first instance were committed together with ... M. ....\" On 2 September 1982, the Court of Appeal rejected the objections (Gegenvorstellungen) which the applicant had lodged against the judgment of 14 July 1982. 22.", "Mrs. Nölkenbockhoff then applied to the Federal Constitutional Court (Bundesverfassungsgericht), claiming a breach of Article 1 § 1 (protection of the dignity of man), Article 14 § 1 (the right of property) and Article 20 § 3 (principle of the rule of law) of the Basic Law. On 30 September 1982, a bench of three judges of the Constitutional Court refused to entertain the constitutional complaint because it considered that the complaint did not have sufficient prospects of success. The reasons for its decision were as follows: \"1. The presumption of innocence, which is founded on the principle of the rule of law, precludes treating as guilty a person who has not been finally (rechtskräftig) convicted. That does not mean, however, that in every case costs must be reimbursed where the proceedings are terminated without guilt having been established (Schuldnachweis) ... 2.", "The refusal of the applications for an order that the Treasury should bear the deceased defendant’s necessary costs and expenses is based on Article 467 § 3, second sentence, sub-paragraph 2, of the Code of Criminal Procedure. The decision on the claim for compensation is based on section 6(1)(2) of the Criminal Proceedings (Compensation) Act. Both provisions, whose conformity with the Constitution cannot be doubted, confer on the courts a degree of discretion. There is nothing to suggest that the courts exercised their discretion in a manner contrary to the Constitution. (a) Admittedly, the decisions being challenged make a prediction of the probable outcome of the proceedings had they been continued.", "However, such an assessment does not amount to a finding of guilt but merely to a finding of a continuing state of suspicion (Eine derartige Einschätzung enthält indessen nicht die Feststellung einer Schuld, sondern lediglich die Feststellung einer fortbestehenden Verdachtslage). Consequently, it does not offend the presumption of innocence. (b) Nor was the prediction of the outcome of the proceedings arbitrary in nature. (aa) Neither the alleged defects ... in the judgment convicting the defendant nor the grounds of the appeal on points of law make it possible to dismiss as untenable the conclusion reached in the contested decisions that a (subsequent) acquittal was unlikely in respect of each of the offences of which the deceased defendant had been convicted. That was the only relevant issue for the order as to costs.", "The courts’ reference to the lack of success of the appeal proceedings instituted by the co-defendant M and to the withdrawal of the appeals on points of law entered by the other defendants is clearly to be regarded merely as an additional argument, and the impugned decisions are not based on it. (bb) Nor do the grounds advanced in support of the constitutional complaint show the unreasonableness of the Regional Court’s opinion that, had the proceedings been continued, a conviction would have been more likely than an acquittal ... [in connection with the charge in respect of which the proceedings had been provisionally stayed] ... ....\" II. RELEVANT DOMESTIC LAW 23. Article 154 of the Code of Criminal Procedure, which was applied by the Essen Regional Court in its judgment of 11 July 1980, provides: \"1. The public prosecutor may decide not to prosecute (1) where the penalty or the corrective or preventive measure to be expected if a conviction is secured is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant in a final decision - or which he must expect to be imposed - for another offence ... .... 2.", "Once proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor. ....\" 24. By the terms of Article 464 of the Code of Criminal Procedure, any judgment, order of summary punishment or decision terminating a set of proceedings must determine who is to pay the costs of the proceedings (paragraph 1); the judgment or decision in which the proceedings culminate shall state who is to bear the necessary costs and expenses (paragraph 2). Article 467 of the Code of Criminal Procedure further provides: \"1. If the defendant (Angeschuldigter) is acquitted or if committal for trial (Hauptverfahren) is refused or if the proceedings against him are discontinued, the costs of the proceedings and the defendant’s necessary costs and expenses shall be borne by the Treasury.", "... 3. ... The court may decline to award the defendant’s necessary costs and expenses against the Treasury where the defendant ... (2) has avoided conviction merely because of a technical bar to the proceedings (Verfahrenshindernis). 4. If the court stays the proceedings under a provision which leaves this decision to its discretion, it may decide not to order the Treasury to bear the defendant’s necessary costs and expenses.", "....\" Inasmuch as the law does not make the reimbursement of necessary costs and expenses mandatory, the courts decide the issue on an equitable basis and have a degree of discretion in the matter. 25. The death of a person who has been convicted, if it occurs before the relevant criminal proceedings have been definitively closed, terminates those proceedings without any decision by the competent court being needed; in such circumstances, the costs of the proceedings cannot be awarded against the estate of the deceased (Article 465 § 3 of the Code of Criminal Procedure). As regards the deceased’s own necessary costs and expenses and indemnification in respect of any time spent by the deceased in detention on remand, the practice of the German courts at the time in question varied. Some courts considered any indemnification to be precluded, whereas others - such as the Essen Regional Court in the present case - applied the relevant provisions of the Code of Criminal Procedure and the Criminal Proceedings (Compensation) Act.", "On 3 October 1986, the Federal Court of Justice held that, in the absence of any basis in law, the necessary costs and expenses of a defendant who has died before the conviction has become final cannot be awarded out of public funds. 26. By section 2(1) of the Criminal Proceedings (Compensation) Act of 8 March 1971, any person who has suffered prejudice by reason of having been detained on remand shall be indemnified by the Treasury in the event of his being acquitted or if the proceedings brought against him are discontinued. This rule is, however, subject to certain exceptions, including the one laid down in section 6(1)(2) of the Act, which provides: \"1. Compensation may be refused wholly or in part where the defendant ... (2) is not convicted of an offence or proceedings are discontinued solely on account of ... a technical bar.\"", "By section 8 of the same Act, the competent court shall give a ruling on indemnification in the judgment or the decision terminating proceedings. 27. The scope of the principle of the presumption of innocence in the context of discontinuance of criminal proceedings has recently been clarified by the Federal Constitutional Court. By a judgment (Beschluss) delivered on 26 March 1987, the Federal Constitutional Court quashed, as contravening the principle, two decisions by district courts and one decision by a regional court whereby the courts, having held the guilt of the defendants to be insignificant (gering), had stayed the private prosecutions brought against them but had awarded the costs of the proceedings against the defendants, including the costs and expenses of the complainants (cases 2 Bvr 589/79, 2 BvR 740/81 and 2 Bvr 284/85, Europäische Grundrechte-Zeitschrift 1987, pp. 203-209).", "The Constitutional Court held it to be inconsistent with the presumption of innocence to speak in the reasons given for a discontinuance decision of a defendant’s guilt or to base an order as to costs and expenses on the supposition (Annahme) that a defendant has been guilty of an offence if the trial has not reached the stage at which the verdict can be given (Schuldspruchreife). It pointed out that the principle of the presumption of innocence derived from the principle of the rule of law, and it also referred to Article 6 § 2 (art. 6-2) of the Convention. The Convention did not have the status of constitutional law in the Federal Republic, but regard should be had to it and to the case-law of the European Court of Human Rights in interpreting the principles and fundamental rights enshrined in the Basic Law (Grundgesetz). Reaffirming its case-law, the Constitutional Court reiterated that, by virtue of the principle of the presumption of innocence, no measures amounting in effect to a penalty may be taken against a defendant without his guilt having been established beforehand at a proper trial and no defendant may be treated as guilty.", "The court added that this principle requires that guilt be proved according to law before it can be held against the person concerned. A finding of guilt will accordingly not be legitimate for this purpose unless it is pronounced at the close of a trial which has reached the stage at which a verdict can be given. Citing the Minelli judgment of 25 March 1983 (Series A no. 62), the Constitutional Court ruled that a decision discontinuing criminal proceedings may offend the presumption of innocence if it contains in its reasoning a finding of the defendant’s guilt without that guilt having been proved according to law. On the other hand, nothing precluded a court from making findings in such a decision as to the defendant’s guilt and ordering him to pay the necessary costs and expenses of the complainants as well as the costs of the proceedings if it had held a hearing enabling it to reach a verdict (Entscheidungsreife).", "On the basis of these considerations, the Constitutional Court quashed three of the five decisions challenged but dismissed the application in the first of the three cases concerned, as the defence had made the closing address after a trial. PROCEEDINGS BEFORE THE COMMISSION 28. The application (no. 10300/83) was originally lodged on 7 February 1983 by both Mrs. Nölkenbockhoff and her lawyer, Mr. Bergemann. Mrs. Nölkenbockhoff complained of the length of her husband’s detention on remand and of the length of his trial itself; she relied on Articles 5 § 3 and 6 § 1 (art.", "5-3, art. 6-1) of the Convention. Mr. Bergemann claimed to be the victim of a breach of Article 6 § 3 (art. 6-3) in that criminal proceedings were taken against him in order to intimidate the defence in Mr. Nölkenbockhoff’s trial. The applicants claimed, lastly, that the presumption of innocence secured in Article 6 § 2 (art.", "6-2) had been disregarded by reason of the grounds on which the Essen Regional Court and the Hamm Court of Appeal had refused to award any compensation for the time spent by Mr. Nölkenbockhoff in detention on remand and to order the Treasury to bear Mr. Nölkenbockhoff’s necessary costs and expenses. 29. On 12 December 1984, the Commission declared Mrs. Nölkenbockhoff’s complaint under Article 6 § 2 (art. 6-2) admissible and rejected the application as to the rest. In its report of 9 October 1985 (made under Article 31) (art.", "31), the Commission expressed the unanimous opinion that there had been a breach of Article 6 § 2 (art. 6-2). The full text of its opinion is reproduced as an annex to the present judgment. FINAL SUBMISSIONS BY THOSE APPEARING BEFORE THE COURT 30. In their memorial of 17 November 1986, the Government requested the Court to hold: \"1.", "... that the Court is not in a position to go into the merits of the case because the applicant is not a ‘victim’ within the meaning of Article 25 (art. 25) of the European Convention on Human Rights; 2. alternatively, ... that there has been no violation of Article 6 § 2 (art. 6-2) of the Convention.\" In her memorial of 1 July 1986, the applicant asked the Court to hold that: \"1. Article 6 § 2 (art.", "6-2) of the European Convention on Human Rights has been violated by the decisions of 5 March 1982 by the Essen Regional Court and 14 July 1982 by the Hamm Court of Appeal. 2. It is incumbent on the respondent State to refund to the applicant the costs and expenses incurred in the proceedings. 3. It is incumbent on the respondent State to grant just satisfaction to the applicant, the exact amount to be assessed by the Court.\"", "Those appearing before the Court reiterated their submissions at the hearing on 23 February 1987. AS TO THE LAW 31. Mrs. Nölkenbockhoff complained of the decisions delivered by the Essen Regional Court on 5 March 1982, by the Hamm Court of Appeal on 14 July 1982 and by the Federal Constitutional Court on 30 September 1982. In her submission, the reasons given by these courts for their refusal to order reimbursement of her late husband’s necessary costs and expenses and to award compensation in respect of his detention on remand contravened Article 6 § 2 (art. 6-2), which reads: \"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.\"", "The Government argued in reply that the applicant could not claim to have been a \"victim\" herself of the violation complained of. In the alternative, they maintained that there had been no breach of Article 6 § 2 (art. 6-2). The Commission agreed with the applicant’s contentions. I.", "ALLEGED LACK OF STANDING AS A \"VICTIM\" 32. In the Government’s view, Mrs. Nölkenbockhoff could not claim to be the \"victim\", within the meaning of Article 25 (art. 25), of a breach of Article 6 § 2 (art. 6-2), since a breach of the principle of the presumption of innocence could affect only a person involved in criminal proceedings and not a third person against whom no such proceedings were being taken. The Government had previously raised this plea before the Commission at the admissibility stage; there is accordingly no estoppel (see notably the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no.", "77, p. 20, § 40). 33. The principle of the presumption of innocence is intended to protect \"everyone charged with a criminal offence\" from having a verdict of guilty passed on him without his guilt having been proved according to law. It does not follow, however, that a decision whereby the innocence of a man \"charged with a criminal offence\" is put in issue after his death cannot be challenged by his widow under Article 25 (art. 25).", "She may be able to show both a legitimate material interest in her capacity as the deceased’s heir and a moral interest, on behalf of herself and of the family, in having her late husband exonerated from any finding of guilt (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, pp. 19-20, § 37). As was pointed out by the Delegate, such is indeed the position in the present case. In the circumstances, Mrs. Nölkenbockhoff can consequently claim to be a \"victim\" within the meaning of Article 25 (art.", "25). The Court would, moreover, point out that the German Constitutional Court, whose procedure of individual petitions is similar to the one established under the Convention (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 19, § 36), did not dismiss Mrs. Nölkenbockhoff’s application for lack of locus standi (see paragraph 22 above). II. ALLEGED VIOLATION OF ARTICLE 6 § 2 (art.", "6-2) 34. In Mrs. Nölkenbockhoff’s submission, the Essen Regional Court’s decision of 5 March 1982 contained a finding of guilt which was not merely confirmed but emphasised in the judgment delivered by the Hamm Court of Appeal on 14 July 1982. The Federal Constitutional Court, far from exonerating her husband from that finding of guilt, simply interpreted the contested decisions as describing a \"state of suspicion\". In the Government’s submission, the principle of the presumption of innocence no longer applied at the time the Regional Court handed down its ruling, since the death of the applicant’s husband had, by operation of law, put an end to the criminal proceedings and therefore precluded any possibility of finding him guilty and imposing a penalty on him. The decision by the Regional Court, which was given after the close of the proceedings, was concerned solely with Mr. Nölkenbockhoff’s own necessary costs and expenses and with compensation for his detention on remand.", "This decision did not amount to a penalty (Bestrafung) or a measure which in its effects could be equated with a penalty. As had been clearly stated by the Constitutional Court, the reasons given for it did not imply any assessment of the defendant’s guilt; having regard to the state of the proceedings, and in particular Mr. Nölkenbockhoff’s conviction at first instance, they described a \"state of suspicion\" with the sole aim of reaching a fair decision on the two points in issue. Furthermore, where a prosecution was discontinued, the Convention did not oblige the Contracting States to indemnify a person \"charged with a criminal offence\" for any detriment he might have suffered. The impugned decision could not be contrary to the Convention on account of its supporting reasoning if its operative provisions - which alone acquired final, binding effect - were in conformity with it. The Commission considered, like the applicant, that there had been a breach of Article 6 § 2 (art.", "6-2), as the reasoning complained of undoubtedly gave the impression that, had the proceedings not been terminated by the death of Mr. Nölkenbockhoff, his conviction would have stood. This conclusion was reinforced by the Court of Appeal and in no way altered by the Constitutional Court. 35. Mr. Nölkenbockhoff’s death brought to an end the criminal proceedings against him without any formal decision of discontinuance being taken by the competent criminal court. On an application by his widow, the Regional Court refused, on 5 March 1982, to order payment of the defendant’s necessary costs and expenses out of public funds and to award any compensation for his detention on remand (see paragraph 17 above).", "This decision - which was upheld by the Hamm Court of Appeal and, in substance, by the Federal Constitutional Court (see paragraphs 21-22 above) - was a direct sequel to the de facto termination of the proceedings. Consequently, Article 6 § 2 (art. 6-2) may in principle be invoked with regard to the impugned decisions. 36. The Court points out, however, like the Commission and the Government, that neither Article 6 § 2 (art.", "6-2) nor any other provision of the Convention gives a person \"charged with a criminal offence\" a right to reimbursement of his costs or a right to compensation for lawful detention on remand where proceedings taken against him are discontinued. The double refusal complained of by Mrs. Nölkenbockhoff accordingly does not in itself offend the presumption of innocence (see, mutatis mutandis, the Minelli judgment of 25 March 1983, Series A no. 62, p. 17, §§ 34-35). 37. Nevertheless, a decision whereby compensation for detention on remand and reimbursement of an accused’s (or his heirs’) necessary costs and expenses are refused following termination of proceedings may raise an issue under Article 6 § 2 (art.", "6-2) if supporting reasoning which cannot be dissociated from the operative provisions (see the same judgment, p. 18, § 38) amounts in substance to a determination of the accused’s guilt without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence (ibid., § 37). 38. The Essen Regional Court based its double refusal on Article 467 § 3, second sentence, sub-paragraph 2, of the Code of Criminal Procedure and on section 6(2)(2) of the Criminal Proceedings (Compensation) Act (see paragraphs 17, 24 and 26 above). The Hamm Court of Appeal upheld the Regional Court’s ruling but left open the question whether such claims could legally be made under these provisions (see paragraph 21 above). In the judgment of the Constitutional Court, the two provisions did indeed furnish the basis in law for the decisions in issue (see paragraph 22 above).", "The Article and the section in question set forth exceptions to the rule in German law that, where criminal proceedings are discontinued, the Treasury must bear the necessary costs and expenses of the defendant (Article 467 § 1 of the same Code) and pay him compensation for any detention on remand (section 2 of the same Act). Applying the provisions means that the relevant courts, which decide the matter on an equitable basis and have a degree of discretion, are under an obligation to take into account, inter alia, the state of the proceedings when brought to a close, the conduct of the defendant and the weight of the suspicion still falling on him. 39. The Essen Regional Court refused to order the Treasury to bear Mr. Nölkenbockhoff’s necessary costs and expenses and to award any compensation for his detention on remand because \"the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld\" if the proceedings had continued. In support of this conclusion, the Regional Court referred in particular to his conviction at first instance, after a trial lasting more than three and a half years; the final conviction of three co-defendants and their heavy prison sentences; the submissions made by the defence on appeal, \"which afford[ed] no reason to suppose that [he] would have been acquitted had the proceedings continued\"; and the fact that the aforesaid co-defendants had withdrawn their appeals, which \"argue[d] decisively in favour of the correctness of the judgment\" delivered (see paragraph 17 above).", "To the extent that the proceedings had been provisionally stayed under Article 154 of the Code of Criminal Procedure (see paragraph 23 above), the Regional Court added, there were no grounds for ordering the Treasury to pay the necessary costs and expenses, \"because in view of the reasons given for the judgment, it would have been much more likely ... that if the proceedings had continued, the defendant would have been convicted\" (see paragraph 17 above). In the judgment of the Hamm Court of Appeal, which spoke of \"the reasons given for the contested decision [being] valid\", \"the assessment of the probable outcome of the trial ... [led] to the conclusion that if the proceedings had been pursued until a final decision [had been] handed down, [Mr. Nölkenbockhoff’s] conviction would almost certainly have been upheld\" (see paragraph 21 above). The Court of Appeal further referred to the fact that the appeal on points of law brought by one of the co-defendants had in the meanwhile been dismissed by the Federal Court of Justice as being manifestly ill-founded. That fact, so the Court of Appeal found, was \"of particular importance in assessing the prospects of success which ... Mr. Nölkenbockhoff’s appeal would have had, because according to the reasons given for the judgment [at first instance], the offences of which ... [he] was convicted were committed together with [the co-defendant in question]\". As far as the Federal Constitutional Court was concerned, the decisions being challenged before it made \"a prediction of the probable outcome of the proceedings\"; they did \"not amount to a finding of guilt but merely to a finding of a continuing state of suspicion\" (see paragraph 22 above).", "The German courts thereby meant to indicate, as they were required to do for the purposes of the decisions to be taken, that there were still strong suspicions concerning the applicant. Even if the terms used by the Essen Regional Court and the Hamm Court of Appeal were ambiguous and unsatisfactory, these courts confined themselves in substance to noting the existence of \"reasonable suspicion\" that the person concerned had \"committed an offence\" (Article 5 § 1 (c) of the Convention) (art. 5-1-c). On the basis of the evidence, the decisions described a \"state of suspicion\". Taking as their starting-point Mr. Nölkenbockhoff’s conviction at first instance, they assessed the prospects of success of his appeal on points of law having regard to the fate of the appeals entered by his co-defendants.", "As was stated by the Constitutional Court, they contained a prediction of the probable outcome of the proceedings had they been continued, but not a finding of guilt. In this respect they contrast with the decisions the Court considered in the Minelli case (see the judgment previously cited, Series A no. 62, pp. 8-10, §§ 12-14, and pp. 11-12, § 16) and also with the decisions set aside by the Federal Constitutional Court on 26 March 1987 (see paragraph 27 above).", "40. Moreover, the refusal to order the Treasury to pay Mr. Nölkenbockhoff’s necessary costs and expenses and to award any compensation in respect of his detention on remand does not amount to a penalty or a measure that can be equated with a penalty. In this respect too, the instant case very clearly differs from the Minelli case, as also from the cases decided by the Federal Constitutional Court on 26 March 1987 (see paragraph 27 above). The Swiss courts had directed that Mr. Minelli should bear part of the costs of the proceedings and had ordered him to pay the private prosecutors compensation in respect of their expenses (see the judgment previously cited, ibid. ), thus treating him as guilty.", "Nothing comparable occurred in the instant case : Mrs. Nölkenbockhoff did not have to bear the costs of the proceedings but only the costs and expenses of her late husband, and she was not awarded any compensation in respect of his detention on remand. The competent courts, acting on an equitable basis and having regard to the strong suspicions which seemed to them to exist concerning Mr. Nölkenbockhoff, did not impose a sanction but merely refused to order that the said costs and expenses or any compensation should be paid out of public funds. And, as the Court has already pointed out, the Convention - more particularly Article 6 § 2 (art. 6-2) - does not oblige the Contracting States, where a prosecution has been discontinued, to indemnify a person \"charged with a criminal offence\" for any detriment he may have suffered. 41.", "In conclusion, the Essen Regional Court’s decision, which was upheld by the Hamm Court of Appeal and the Federal Constitutional Court, did not offend the presumption of innocence guaranteed under Article 6 § 2 (art. 6-2). FOR THESE REASONS, THE COURT 1. Rejects unanimously the objection that the applicant cannot be regarded as a victim within the meaning of Article 25 (art. 25); 2.", "Holds by sixteen votes to one that there has been no breach of Article 6 § 2 (art. 6-2). Done in English and in French and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 August 1987. Rolv RYSSDAL President Marc-André EISSEN Registrar In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the dissenting opinion of Mr. Cremona is annexed to this judgment.", "R. R. M.-A. E. DISSENTING OPINION OF JUDGE CREMONA Whilst agreeing with the judgment as to the rejection of the Government’s preliminary objection, I regret I cannot do the same with regard to the conclusion that there was no violation of Article 6 § 2 (art. 6-2) of the Convention in the instant case. Instead, I concur with the unanimous Commission that there was. In order to clear the ground at once of certain matters, I would premise the following: 1.", "Firstly, I concur with the judgment that after the termination of the prosecution of the applicant’s husband by reason of his death, the decision of the Essen Regional Court - upheld by the Hamm Court of Appeal and the Federal Constitutional Court - refusing to order reimbursement of his necessary costs and expenses and to award any compensation in respect of his detention on remand, forms a natural sequel to the termination of the proceedings, which occurred de facto. Consequently, Article 6 § 2 (art. 6-2) may in principle be invoked with regard to the said decisions (paragraph 35 of the judgment). 2. Secondly, I also concur with the judgment that neither Article 6 § 2 (art.", "6-2) nor any other provision of the Convention grants a person charged with a criminal offence a right to reimbursement of his costs and expenses or a right to compensation in respect of his lawful detention on remand where proceedings against him are terminated by reason of his death. The courts’ refusal to order such reimbursement or award such compensation does not therefore in itself offend the presumption of innocence (paragraph 36 of the judgment). 3. Thirdly, I also concur with the judgment that a decision refusing such reimbursement or such compensation in the wake of a termination of proceedings by reason of the accused’s death may, however, raise an issue under Article 6 § 2 (art. 6-2) if supporting reasoning which cannot be dissociated from the operative provisions amounts in substance to a determination (constat) of the accused’s guilt (which I understand in the sense of an assessment of his guilt) without his having previously been proved guilty according to law and in particular without his having had an opportunity to exercise his defence rights (paragraph 37 of the judgment).", "Having premised that, I consider that the conclusion of non-violation in this judgment rests essentially on two points: (a) that the contested judicial pronouncements of the domestic courts described only \"a state of suspicion\" and did not involve a finding of guilt (paragraph 39 of the judgment), and (b) that the courts’ refusal to order reimbursement of the accused’s necessary costs and expenses and to award any compensation in respect of his detention on remand did not amount to a penalty or a measure which could be equated with a penalty (paragraph 40 of the judgment). As to the first point, clearly an element of suspicion is inherent in the very fact that a person is criminally charged, but that is of course inseparable from the essential machinery of the criminal trial itself. In fact, among the cases where a person may be deprived of his liberty, provided this is done in accordance with a procedure prescribed by law, the Convention itself mentions \"the lawful arrest and detention of a person effected for the purpose of bringing him before the competent authority on reasonable suspicion of having committed an offence\" (Article 5 § 1 (c)) (art. 5-1-c). In the present case, however, the clear and explicit wording used by the courts in their judicial decisions concerning Mr. Nölkenbockhoff, who was charged with a criminal offence, goes much further than that.", "In fact, the decision of the Essen Regional Court, in refusing to order reimbursement of the accused’s costs and expenses and indemnification in respect of his detention on remand under the applicable domestic legislation, stated, in terms which, unlike my colleagues, I find unambiguous, that if the proceedings had continued \"the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld\" and that \"it was much more likely ... that if the proceedings had continued, the defendant would have been convicted\". Moreover, the Hamm Court of Appeal, in dismissing the applicant’s appeal, stated, again in unambiguous terms, that \"if the proceedings had been pursued until a final decision was handed down, the ... defendant’s conviction would almost certainly have been upheld\". The decision of the group of three judges of the Federal Constitutional Court rejecting the applicant’s constitutional complaint against these decisions was confined to an attempt at interpreting the reasons stated in the decisions without, as the Commission pointed out, altering their meaning or scope. Thus, in my view, what happened in the instant case is the materialisation of the situation envisaged in paragraph 37 of the judgment (see above). Indeed, we have here judicial decisions refusing, or confirming the refusal of, reimbursement of the accused’s costs and expenses and indemnification in respect of his detention on remand, the supporting reasoning of which (which cannot be dissociated from the operative provisions) amounts in substance to a determination (constat) of the accused’s guilt (which, as already stated, I understand in the sense of an assessment thereof) without his having been previously proved guilty according to law and in particular without his having had an opportunity to exercise his defence rights.", "Like the unanimous Commission, I find that the above reasoning of the aforesaid courts is perfectly capable of being understood as meaning that the accused was in fact guilty of a criminal offence. Indeed this is the ordinary meaning conveyed by the wording actually used, and when it comes to such a basic principle as that of the presumption of innocence, what really matters is not the possible intent with which certain words were uttered in judicial decisions concerning the accused, but the actual meaning of those words to the public at large. What is decisive is that at the end of the day one is left with the impression that the courts did consider that Mr. Nölkenbockhoff was in fact guilty. The net result is in my view a surrogate conviction of the accused without the benefit of the protection afforded by Article 6 § 2 (art. 6-2).", "Incidentally, the offending wording at the centre of this case is not substantially dissimilar from that which was at the centre of the Minelli case, in which this Court did find a violation of that provision. An attempt has been made to distinguish the two cases on the basis of a \"punishment content\", and this brings me to the second point on which the finding of non-violation in the present judgment relies. As to this question of the absence of a penalty or a measure which can be equated with one, I would say that of course the application of such penalty or measure would have reinforced my conclusion, but absence thereof in no way invalidates it. The principle of the presumption of innocence can be violated independently of the application of such penalty or measure. That presumption accompanies a person charged with a criminal offence throughout the whole trial until conviction.", "Indeed this cardinal principle of the modern criminal trial would have been lamentably improvident if its scope had to be confined to the non-application of a penalty or, to use again the wording of the judgment, a measure which can be equated with one. Punishment is usually only the last stage in the unfolding of a criminal trial and modern criminal legislation also envisages convictions without punishment or a measure which can be equated with it (cf. for instance in the British system \"absolute discharge\"). What is decisive for the present purpose is not the non-application of punishment, but the fact of a judicial assessment of Mr. Nölkenbockhoff’s guilt, and in the instant case it is this that the wording of the judicial decisions in question in fact entails. I therefore find a violation of Article 6 § 2 (art.", "6-2) of the Convention. [*] Note by the Registrar: The case is numbered 10/1986/108/156. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation." ]

[ "FOURTH SECTION CASE OF LUDWICZAK v. POLAND (Application no. 31748/06) JUDGMENT STRASBOURG 16 December 2008 FINAL 16/03/2009 This judgment may be subject to editorial revision. In the case of Ludwiczak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,Päivi Hirvelä,Ledi Bianku,Nebojša Vučinić, judges,and Lawrence Early, Section Registrar, Having deliberated in private on 25 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 31748/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Eugeniusz Ludwiczak (“the applicant”), on 17 July 2006.", "2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 13 September 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1945 and lives in Ostrów Mazowiecka. A. Main proceedings 5.", "On 9 November 1992 the applicant lodged with the Ostrów Mazowiecka District Court (Sąd Rejonowy) a claim for payment against his ex-employer, a construction company. 6. On the same day the case file was sent to the Warszawa District Court which was competent to deal with the subject-matter. 7. The first hearing was scheduled for 22 February 1993.", "It did not take place because on 21 December 1992 the Warszawa District Court stayed the proceedings due to the fact that on 3 December 1992 winding-up proceedings had been instituted against the defendant. 8. On 5 April 1994 the applicant’s claim was entered on the list of claims (lista wierzytelności). 9. On 27 May 1994 the Warszawa District Court refused to resume the proceedings.", "10. On 18 September 2000 the Warszawa District Court was informed that the winding-up proceedings had been discontinued. 11. The proceedings were resumed on 6 April 2001. On the same day the case was joined to similar claims lodged against the defendant, and registered under a new reference number.", "The court adjourned the trial until 1 February 2002. 12. It appears that between the date when the proceedings were resumed and the day on which the first-instance judgment was given, no hearing took place. The trial was adjourned 11 times on procedural grounds, such as, for example, the appointment of the defendant’s curator then its liquidator, and the need to supplement the evidence and to appoint an expert. 13.", "On 24 July 2006 the Warszawa District Court, following the applicant’s motion, appointed a lawyer for the applicant. 14. On 31 October 2006 the Warszawa District Court gave judgment and discontinued the proceedings in respect of the applicant. 15. On 18 December 2006 the applicant’s lawyer lodged an appeal.", "It was rejected by the Warszawa District Court on 9 February 2007 on procedural grounds, i.e. failure to pay the so-called “basic court fee” (opłata podstawowa). B. Proceedings under the 2004 Act 16. On 6 December 2006 the applicant lodged with the Warszawa Regional Court (Sąd Okręgowy) a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) which entered into force on 17 September 2004.", "The applicant sought a ruling declaring that the length of the proceedings before the Warszawa District Court had been excessive. 17. On 25 January 2007 the Warszawa Regional Court dismissed his complaint. The court examined the course of the impugned proceedings and held that there had been no delays for which the Warszawa District Court could be held responsible, although it admitted that the proceedings had been lengthy. 18.", "On 26 February 2007 the Warszawa Regional Court rejected the applicant’s appeal against the decision of 25 January 2007 as inadmissible in law. II. RELEVANT DOMESTIC LAW AND PRACTICE 19. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no.", "11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 20. On 22 April 2008 the Government submitted a unilateral declaration similar to that in the case Tahsin Acar v. Turkey (preliminary objection) [GC], no.", "26307/95, ECHR 2003-VI) and informed the Court that they were ready to accept that there had been a violation of the applicant’s rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the proceedings in which the applicant had been involved. In respect of non-pecuniary damage, the Government proposed to award the applicant PLN 20,000 (the equivalent of approx. EUR 5,900). The Government invited the Court to strike out the application in accordance with Article 37 of the Convention. 21.", "The applicant did not agree with the Government’s proposal and requested the Court to continue the examination of the case. He maintained that the amount offered was too low. 22. The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75; and Melnic v. Moldova, no.", "6923/03, § 22, 14 November 2006). 23. According to the Court’s case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar length of proceedings cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the reasonable‑time requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85‑107, ECHR 2006‑...; Scordino v. Italy (no.1) [GC], no.", "36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004). 24. On the facts and for the reasons set out above, in particular the amount of compensation proposed, the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see, conversely, Spółka z o.o. WAZA v. Poland (striking out), no.", "11602/02, 26 June 2007). 25. This being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 26.", "The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 27. The Government refrained from taking a position on the merits of the applicant’s complaint. 28. The Court notes that the proceedings commenced on 9 November 1992. However, the period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect.", "Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 9 February 2007. It thus lasted thirteen years, nine months and thirteen days at one court instance. A. Admissibility 29. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 30. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no.", "30979/96, § 43, ECHR 2000-VII). 31. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. 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 33.", "The applicant claimed 9,206 US dollars (USD) in respect of pecuniary damage and 20,000 euros (EUR) in respect of non-pecuniary damage. 34. The Government contested these claims. 35. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "On the other hand, and having regard to the fact that the proceedings were stayed for almost eight years due to objective reasons, it awards the applicant EUR 9,300 in respect of non-pecuniary damage. B. Costs and expenses 36. The applicant did not make any claim for costs and expenses involved in the proceedings. C. Default interest 37.", "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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Rejects the Government’s request to strike the application out of its list of cases; 2. Declares the application admissible; 3. Holds that there had been a violation of Article 6 § 1 of the Convention; 4.", "Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,300 (nine thousand three hundred euros) in respect of non‑pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence EarlyNicolas BratzaRegistrarPresident" ]

[ "SECOND SECTION CASE OF MUHARREM ASLAN YILDIZ v. TURKEY (Application no. 74530/01) JUDGMENT STRASBOURG 7 February 2006 FINAL 07/05/2006 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Muharrem Aslan Yıldız v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: MrJ.-P. Costa, President,MrA.B. Baka,MrR.", "Türmen,MrK. Jungwiert,MrM. Ugrekhelidze,MrsA. Mularoni,MrsE. Fura-Sandström, judges,and Mrs S. Dollé, Section Registrar, Having deliberated in private on 17 January 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 74530/01) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Muharrem Aslan Yıldız (“the applicant”), on 1 July 1998. 2. The applicant was represented by Ms Ö. Sözer, a lawyer practising in Mersin. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.", "3. On 16 October 2001 the Court decided to communicate the application to the Government. In a letter of 19 October 2004, the Court informed the parties that, in accordance with Article 29 §§ 1 and 3 of the Convention, it would decide on both the admissibility and merits of the application. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4.", "The applicant was born in 1954 and lives in Mersin. The General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated four plots of land belonging to the applicant in İçel in order to build a motorway. A committee of experts assessed the value of the land and the sum so fixed was paid to him when the expropriation took place. 5. Following the applicant’s request for increased compensation, on 22 February 1995 the Mersin Civil Court of First Instance awarded him additional compensation of 204,787,320 Turkish liras (TRL) (approximately 3,900 euros (EUR)), plus interest at the statutory rate applicable at the date of the court’s decision, running from 14 December 1993.", "6. On 16 December 1997 the Court of Cassation upheld the judgment of 22 February 1995. 7. On 16 April 1998 the administration paid the applicant TRL 545,269,000 (approximately EUR 2,020) in additional compensation, together with interest. 8.", "On 21 January 1998 the decision of the Court of Cassation was served on the applicant. II. RELEVANT DOMESTIC LAW AND PRACTICE 9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25). THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 10. The applicant complained that the additional compensation for expropriation, which he had obtained from the authorities only after four years and four months of court proceedings, had fallen in value, since the default interest payable had not kept pace with the very high rate of inflation in Turkey. He relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions.", "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 11. The Government maintained that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, because he had failed to make proper use of the remedy available to him under Article 105 of the Code of Obligations. Under that provision, he would have been eligible for compensation for the losses allegedly sustained as a result of the delays in payment of the additional compensation if he had established that the losses exceeded the amount of default interest. 12.", "The Court observes that it dismissed a similar preliminary objection in the case of Aka v. Turkey (cited above, §§ 34-37). It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection. 13. It finds that, in the light of the principles it has established in its case-law (see, among other authorities, the aforementioned Aka v. Turkey judgment) and of all the evidence before it, the application requires examination on the merits and there are no grounds for declaring it inadmissible. B.", "Merits 14. The Court has found a violation of Article 1 of Protocol No. 1 in a number of cases that raise similar issues to those arising here (see Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997‑IV, § 31, and Aka, cited above, §§ 50-51). 15. Having examined the facts and arguments presented by the Government and the applicant, the Court considers that there is nothing to warrant a departure from its findings in the previous cases.", "It finds that as a result of the delay in paying the compensation, the low interest rates and the length of the proceedings as a whole, the applicant has had to bear an individual and excessive burden that has upset the fair balance that must be maintained between the demands of the general interest and protection of the right to the peaceful enjoyment of possessions. 16. Consequently, there has been a violation of Article 1 of Protocol No.1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.", "Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary and non-pecuniary damage 18. The applicant claimed for pecuniary damage a sum of 12,115.92 United States dollars (USD), (EUR 9,923), plus interest for the loss he has endured since 16 April 1998. 19. The Government did not make any submission on the applicant’s claim under this head. 20.", "Using the same method of calculation as in the Aka judgment (cited above, §§ 55-56) and having regard to the relevant economic data and the applicant’s claim, the Court awards the applicant EUR 16,800 for pecuniary damage. B. Costs and expenses 21. The applicant also claimed reimbursement for the costs and expenses incurred before the Commission and the Court, but left the amount to the discretion of the Court. He did not produce any supporting documents.", "22. The Government did not make any comment on the applicant’s claim. 23. Making its own estimate based on the information available, the Court considers it equitable to award the applicant the global sum of EUR 1,000 under this head. C. Default interest 24.", "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. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention; 3.", "Holds (a) that the respondent State is to pay the applicant within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following sums plus any tax that may be chargeable at the date of payment, to be converted into new Turkish liras at the rate applicable at the date of settlement: (i) EUR 16,800 (sixteen thousand eight hundred euros) in respect of pecuniary damage; (ii) EUR 1,000 (one thousand euros) in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 February 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. S. DolléJ.-P. CostaRegistrarPresident" ]

[ "THIRD SECTION CASE OF BRÂNDUŞE v. ROMANIA (No. 2) (Application no. 39951/08) JUDGMENT STRASBOURG 27 October 2015 FINAL 27/01/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Brânduşe v. Romania (no.", "2), The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Luis López Guerra, President,Kristina Pardalos,Johannes Silvis,Iulia Antoanella Motoc,Branko Lubarda,Carlo Ranzoni,Armen Harutyunyan, judges,and Stephen Phillips, Section Registrar, Having deliberated in private on 6 October 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 39951/08) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Ioan Brânduşe (“the applicant”), on 18 July 2008. 2. The applicant was represented by Ms R. Crișan Costea, a lawyer practising in Arad.", "The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that he was detained in conditions which do not satisfy the requirements of Article 3 of the Convention and that he was prevented from voting in parliamentary elections because of a blanket ban on prisoners’ voting. 4. On 11 September 2013 these complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1951 and lives in Şomoşcheş, Arad County. 6. At the time of the events in the present case, the applicant was serving a prison sentence for fraud, imposed by two decisions of the Timişoara Court of Appeal on 14 August 2002 and 11 November 2004.", "He was held mainly in Arad and Timişoara Prisons. In 2008 he spent a few days in cell no. 309 of Jilava Prison. According to the applicant’s description, the cell was dirty and lacked access to warm water. 7.", "On several occasions the applicant was kept in the court’s detention rooms where the detainees and guards were allowed to smoke. According to the applicant, he was exposed to passive smoking in the Arad County Court detention room on 15 December 2008. 8. According to the information provided by the prison administration and forwarded to the Court by the Government, the applicant was held in cell no. 309 in Jilava Prison from 29 May to 1 June 2008 and from 16 to 18 June 2008.", "The personal space available to the applicant was 1.65 sq. m during the first period of detention and 1.93 sq. m during the second period of detention. Disinfection and pest control were carried out three times per year and the cell was cleaned daily by the inmates. The same rules of hygiene applied to the toilets and shower rooms.", "The cell benefitted from both natural and artificial light and had beds with mattresses, tables, shelves, and a television set. In an annex to the cell there was a toilet space, consisting of two partitioned toilet bowls and two wash basins. Access to warm water was possible in the common shower room, which contained eighteen showers and to which the inmates had access in privacy once a week. 9. On 30 November 2008 the applicant was not allowed to vote in the parliamentary elections and, despite his requests for clarifications, the prison authorities gave him no explanations as to whether he was entitled to vote or not.", "The next day, he informed the Court about what had happened. 10. On 21 December 2009 the applicant was released on probation. He was arrested again on 2 July 2010 and served the rest of his sentence until 28 March 2011. II.", "RELEVANT LAW A. Conditions of detention 11. Excerpts from the relevant domestic legislation and international reports, specifically Law no. 275/2006 on the execution of sentences; reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”); and Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to member States on the European Prison Rules, are set out in the cases of Bragadireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007; Artimenco v. Romania, no.", "12535/04, §§ 22-23, 30 June 2009; and Iacov Stanciu v. Romania, no. 35972/05, §§ 116-29, 24 July 2012. B. Right to vote 12. The relevant Articles of the Criminal Code providing for the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows: Article 64 – Additional penalties “Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty: (a) the right to vote and to be elected to public authorities or to public office ...” Article 71 – Secondary penalty “The secondary penalty shall consist of disqualification from exercising all the rights listed in Article 64.", "(2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...” 13. In its decision of 5 November 2007 (following an appeal in the interests of the law) which became mandatory on the date of its publication in the Official Gazette on 18 July 2008, the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention and thus assess in each case individually the necessity of the withdrawal of the right to vote. 14. The relevant international instruments concerning restrictions on the right to vote are summarised in Anchugov and Gladkov v. Russia (nos. 11157/04 and 15162/05, §§ 38-46, 4 July 2013).", "THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 15. The applicant complained under Article 3 of the Convention about the conditions of his detention in Jilava Prison and about the fact that he had been kept on several occasions with smokers in the court’s detention facilities. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 16. Firstly, the Government argued that the applicant had not raised his complaint in the application form.", "Moreover, the letter of 18 July 2008 in which he mentioned the complaint did not meet the criteria set forth in Rule 47 of the Rules of Court as the applicant had merely made general statements unsupported by evidence. 17. Secondly, they contended that the applicant had abused the right of individual application. In particular, they considered that the applicant’s complaint concerning the conditions of detention in Arad Prison had already been dealt with by the Court in Brânduşe v. Romania, no. 6586/03, 7 April 2009.", "In their view, the applicant had omitted this information in his current request in order to obtain fresh compensation for the same Convention violation as in his previous application, thus abusing his right of petition. 18. The applicant made no further comments on these points. 19. The Court reiterates that, in accordance with its established practice and Rule 47 § 5 of the Rules of Court, as in force at the relevant time, it normally considered the date of introduction of an application to be the date of the “first communication” indicating an intention to lodge an application and giving some indication of the nature of the application (see Avanesyan v. Russia, no.", "41152/06, § 20, 18 September 2014). In the current case, the applicant set out in his letter of 11 July 2008 a summary description of the conditions of his detention in Jilava Prison which raised a prima facie issue concerning the compliance by the State authorities with the criteria set forth in Article 3 of the Convention in this respect. It was therefore sufficient to warrant examination by the Court (see, in contrast, Nicolescu v. Romania (dec.), no. 38566/04, §§ 10-11, 14 January 2014). 20.", "The Court further reiterates that the communication referred to the conditions of detention in Jilava alone and therefore did not overlap with those already examined by the Court in the applicant’s previous case before the Court in Brânduşe, cited above. 21. The Government’s objections are therefore unfounded and must be dismissed. 22. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.", "It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 23.", "The applicant submitted a statement by F.N.I., another inmate, who explained the situation of non‑smokers in prison. He also submitted court decisions in which the complaint raised by F.N.I. was dismissed as ill‑founded. 24. The Government made reference to the information provided by the prison administration, according to which cell no.", "309 and the attached washroom and toilets were cleaned daily and disinfected three times per year. They reiterated that the applicant had only spent five days in that cell. 25. As for the exposure to passive smoking, the Government could not provide exact information on whether the room in question had been non‑smoking, but pointed out that the applicant himself had received a significant amount of cigarettes during his detention. They further averred that the decision to place the applicant in Jilava Prison had been taken in order to preserve his own interests, namely to ensure that he could easily participate in court hearings in his cases rather than having to be transported from Arad or Timişoara Prisons (which were further away) for each such hearing.", "2. The Court’s assessment 26. The Court refers to the principles established in its case-law regarding conditions of detention (see, in particular, Iacov Stanciu, cited above, §§ 165-70, and Pavalache v. Romania, no. 38746/03, §§ 87-88, 18 October 2011). It reiterates, specifically, that ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3; the assessment of this minimum is, 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 v. Poland [GC], no.", "30210/96, § 91, ECHR 2000‑XI). 27. The Court further reiterates that it has previously found violations of Article 3 on account of severely inadequate conditions of detention, even if the period of detention is brief (notably ten and four days detention in an overcrowded and dirty cell in the case of Koktysh v. Ukraine, no. 43707/07, §§ 22 and 91-95, 10 December 2009, and five days in Căşuneanu v. Romania, no. 22018/10, §§ 61-62, 16 April 2013).", "28. The Court has also already found violations of Article 3 of the Convention on account of the material conditions of detention in Jilava Prison, especially with respect to overcrowding and lack of hygiene (see, among others, Iacov Stanciu, cited above, §§ 173 and 179). 29. Turning to the facts of the present case, the Court notes that the applicant’s submissions in respect of the poor conditions of detention, all be they succinct, correspond to the general findings by the CPT in respect of Romanian prisons (see Iacov Stanciu, cited above, §§ 125-126). Furthermore, it appears from the Government’s submissions that the applicant was also held in overcrowded conditions.", "The Court considers that the material conditions that the applicant had to live in for five days (see paragraph 8 above) were sufficiently intolerable to cause him suffering (see, mutatis mutandis, Căşuneanu, cited above, § 61). The Government failed to put forward any argument that would allow the Court to reach a different conclusion. 30. The foregoing considerations are sufficient to enable the Court to conclude that the conditions of incarceration caused the applicant harm that exceeded the unavoidable level of suffering inherent in detention and thus reached the minimum level of severity necessary to constitute degrading treatment within the meaning of Article 3 of the Convention. 31.", "There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions of the applicant’s detention. 32. On account of this finding, the Court does not consider it necessary to examine the remainder of the complaint concerning the conditions of detention. II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No.", "1 TO THE CONVENTION 33. Relying in substance on Article 3 of Protocol No. 1 to the Convention, the applicant complained that he had not been allowed to vote in the parliamentary elections of 30 November 2008. That provision reads as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” A. Admissibility 34. The Government firstly argued that the applicant had failed to observe the requirements of Rule 47 of the Rules of Court, in that he had not raised his complaint in the application form.", "Moreover, the letter in which he had mentioned the complaint, specifically that of 1 December 2008, had not met the criteria set forth in Rule 47, as the applicant had merely made general statements unsupported by evidence. 35. Secondly, they pointed out that the restrictions on the applicant’s right to vote had been instituted by the decision of 11 November 2004 and argued that the six-month time-limit for lodging this complaint with the Court had started running from that date. Moreover, they noted that two other elections had occurred since that date – the presidential elections of 2004 and the European parliamentary elections of November 2007 – and that the applicant could not vote on those occasions either. In their view, the fact that he had not complained about his disenfranchisement for those elections showed that he had lacked interest and that his complaint was thus purely vexatious.", "36. The applicant did not comment. 37. The Court makes reference to the requirements of Rule 47 at the date when the application was lodged (see paragraph 19 above). It notes that the elections complained of took place on 30 November 2008 and the applicant brought his complaint on 1 December 2008, giving sufficient details in his letter addressed to the Court about the factual situation and the nature of his grievance.", "It is satisfied that Rule 47 was observed by the applicant. 38. The Court further notes that, although disenfranchisement was imposed by the final decision adopted in the case – therefore in 2004 at the latest – the applicant was directly affected by it when he wished to cast his vote in the parliamentary elections of 2008 (see, for instance, Firth and Others v. the United Kingdom, nos. 47784/09, 47806/09, 47812/09, 47818/09, 47829/09, 49001/09, 49007/09, 49018/09, 49033/09 and 49036/09, 12 August 2014 where the applicants complained about their inability to vote in specific elections – for the European Parliament – and lodged their complaint within six months of those elections, irrespective of the date when the statutory ban had been imposed). In a similar case, the Court has concluded that such a disenfranchisement provision produced a continuing state of affairs against which no domestic remedy was in fact available to the applicant, and which could end only when the provision in question was no longer in force or when it was no longer applicable to the applicant (see Anchugov and Gladkov, cited above, § 77).", "39. As for the allegations of vexatious complaint, the Court notes that casting a vote in elections is not an obligation in the respondent State (Article 36 of the Constitution (the right to vote), and Article 4(4) of Law no. 35/2008 on parliamentary elections). Therefore, no negative consequences can be inferred from the applicant’s choice not to participate in the previous elections mentioned by the Government. 40.", "The Government’s objections are therefore unfounded and should be dismissed. 41. 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 42. The applicant averred that he could not vote in the elections. 43.", "The Government contended that the disenfranchisement was applied according to the law. They further argued that the Court’s findings in Cucu v. Romania (no. 22362/06, 13 November 2012) were not applicable in this case, in so far as in Cucu the Court only established that the interested party had to contest the decision to disenfranchise and not a subsequent application of that decision in particular elections. 2. The Court’s assessment 44.", "The Court reiterates that Article 3 of Protocol No. 1 guarantees subjective rights, including the right to vote and to stand for election. It further notes that the rights guaranteed by this Article are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. In addition, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion and universal suffrage has become the guiding principle.", "As the Court has already noted, the same rights are enshrined in Article 25 of the International Covenant on Civil and Political Rights (see Scoppola v. Italy (no. 3) [GC], no. 126/05, §§ 81-82, 22 May 2012). 45. The Court has established in Hirst v. the United Kingdom (no.", "2) ([GC], no. 74025/01, § 82, ECHR 2005‑IX), that when disenfranchisement affects a group of people generally, automatically and indiscriminately, based solely on the fact that they are serving a prison sentence, irrespective of the length of the sentence and irrespective of the nature or seriousness of their offence and their individual circumstances, it is not compatible with Article 3 of Protocol No. 1. 46. In several cases against Romania, the Court has found a similar restriction to be incompatible with the requirements of Article 3 of the First Protocol in so far as, according to Romanian law as it was applied by the domestic courts at that time, all convicted prisoners serving prison sentences received a secondary penalty in the form of a general, automatic and indiscriminate restriction on the right to vote (see, notably, Calmanovici v. Romania, no.", "42250/02, §§ 150-151, 1 July 2008, and Cucu, cited above, § 109). 47. The circumstances of the present case are identical to those examined by the Court in Calmanovici and Cucu, both cited above, as the disenfranchisement was imposed as a direct consequence of incarceration, without an individual assessment of the applicant’s concrete situation by the courts. 48. The Court notes the change in the interpretation of the legislation in question brought about by the decision adopted by the High Court of Cassation and Justice on 5 November 2007 (see paragraph 13 above and Pleş v. Romania (dec.), no.", "15275/10, 8 October 2013). However, this new approach did not benefit the applicant who remained unable to vote in elections. 49. For these reasons, the Court concludes that there has been a violation of Article 3 of Protocol No. 1 to the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 51. The applicant claimed just satisfaction in respect of damage requesting, in particular: – 250,000 euros (EUR) for non-pecuniary damage for the alleged violation of Article 3 of Protocol No.", "1 to the Convention (and other Articles); and – EUR 200 for pecuniary damage for each day of detention in breach of the requirements of Article 3 of the Convention; he further asked the Court to determine the amount of compensation for the non‑pecuniary damage incurred. 52. The Government contested these claims. 53. The Court notes that the applicant failed to justify the pecuniary damage alleged; it therefore rejects this claim.", "However, it awards the applicant EUR 1,500 in respect of non-pecuniary damage for the violation of Article 3 of the Convention. No additional award is made for the violation of Article 3 of Protocol No. 1 to the Convention (see Firth and Others, cited above, § 18). B. Costs and expenses 54.", "The applicant also claimed EUR 1,000 for costs and expenses incurred before the domestic courts and the Court. 55. The Government contested the claim. 56. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and 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 for costs and expenses. C. Default interest 57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2.", "Holds that there has been a violation of Article 3 of the Convention; 3. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand and five hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction.", "Done in English, and notified in writing on 27 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsLuis López GuerraRegistrarPresident" ]

[ "CASE OF COOPER v. THE UNITED KINGDOM (Application no. 48843/99) JUDGMENT STRASBOURG 16 December 2003 In the case of Cooper v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges: MrL. Wildhaber, President,MrC.L. Rozakis,MrJ.-P. Costa,MrG. Ress,SirNicolas Bratza,MrsV.", "Strážnická,MrC. Bîrsan,MrK. Jungwiert,MrM. Fischbach,MrJ. Casadevall, Mr J. Hedigan,MrsM.", "Tsatsa-Nikolovska,MrR. Maruste,MrA. Kovler,MrS. Pavlovschi,MrL. Garlicki, MrJ.", "Borrego Borrego, and also of Mr P.J. Mahoney, Registrar, Having deliberated in private on 1 October and on 3 December 2003, Delivers the following judgment, which was adopted on the last‑mentioned date: PROCEDURE 1. The case originated in an application (no. 48843/99) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Graham Cooper (“the applicant”), on 8 June 1999. 2.", "The applicant was represented by Mr G. Blades, a solicitor practising in Lincoln. The United Kingdom Government (“the Government”) were represented by their Agents, Mr C. Whomersley and, subsequently, Mr J. Grainger, of the Foreign and Commonwealth Office. 3. The applicant complained that he did not have a fair trial by an independent and impartial tribunal established by law, in violation of Article 6 § 1 of the Convention. In particular, he complained that the structure of the court-martial that had tried him was such that it violated the independence and impartiality requirements, and consequently the fairness requirement, of that Article.", "He also complained of unfairness based on the particular facts of his case. 4. The application was allocated to the Fourth Section of the Court. On 4 June 2002 a Chamber of that Section declared inadmissible the specific complaint of unfairness under Article 6 and gave notice to the Government of his main complaint concerning the independence and impartiality of the court-martial (Rule 54 § 2 (b) of the Rules of Court). On 6 May 2003 a Chamber of that Section (composed of Mr M. Pellonpää, Sir Nicolas Bratza, Mrs V. Strážnicka, Mr R. Maruste, Mr S. Pavlovschi, Mr L. Garlicki, Mr J. Borrego Borrego, judges, and Mr M. O'Boyle, Section Registrar) relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to such relinquishment (Article 30 of the Convention and Rule 72).", "5. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 6. Pursuant to Article 29 § 3 of the Convention and Rule 54A § 3, the Grand Chamber notified the parties that it might decide to examine the merits of the complaint before it at the same time as its admissibility and decided to put an additional question to the parties. 7.", "The applicant and the Government each filed observations on the admissibility and merits of the case, together with separate submissions on the applicable domestic law and practice. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 1 October 2003 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMrJ. Grainger, Agent,MrP.", "Havers QC,Counsel,Ms T. Jones, Mr H. Morrison, Mr E. Latham, Air Vice-Marshal R. Charles, Commodore J. Blackett, Commander S. Taylor, Brigadier T. Paphiti, Advisers; (b) for the applicantMrG. Blades, Solicitor, Representative,MrJ. Mackenzie, Solicitor,Adviser. The Court heard addresses by Mr Havers and Mr Blades. 9.", "The Grand Chamber subsequently decided to examine the merits of the complaint before it at the same time as its admissibility (Article 29 § 3 of the Convention and Rule 54A § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1968 and lives in Birmingham. At the relevant time he was a member of the Royal Air Force (RAF).", "11. On 18 February 1998 the applicant, along with a co-accused, was convicted by a district court-martial (pursuant to section 70(1) of the Air Force Act 1955) of theft contrary to the Theft Act 1968. He was sentenced to fifty-six days' imprisonment, to be dismissed from the service and to be reduced to the ranks. 12. The applicant's court-martial was composed of a permanent president (Wing Commander Rodgers), two other officers of lower rank (Squadron Leader Borthwick and Flight Lieutenant Winks) and a judge advocate.", "Wing Commander Rodgers' appointment to the post of permanent president was his last before retirement in September 1998. Although he had been the subject of appraisal reports prior to August 1997, he was not reported on thereafter. The two ordinary members had attended the junior officers' command course in 1993, which included training in disciplinary processes. 13. By a letter from the reviewing authority dated 3 April 1998, the applicant's representative was informed that neither the findings nor the sentence of the court-martial would be varied.", "The authority had received advice from the Judge Advocate General. 14. The applicant's appeal to the Courts-Martial Appeal Court against conviction and sentence was dismissed on 5 February 1999. II. RELEVANT DOMESTIC LAW AND PRACTICE A.", "General 15. The Armed Forces Act 1996 (“the 1996 Act”) came into force on 1 April 1997 and amended, inter alia, the Air Force Act 1955 (references below to “the 1955 Act” are to that Act as amended). Trial by court-martial in the RAF is regulated, inter alia, by the 1955 Act, the Courts-Martial (Air Force) Rules 1997 (“the 1997 Rules”) and the Queen's Regulations for the RAF. 16. Section 70(1) of the 1955 Act provides that any person subject to air-force law who commits a civilian offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against that section.", "17. Section 71(1) of the 1955 Act lists the punishments available to a court-martial following conviction and establishes, as a matter of law, the relative positions of each punishment in the hierarchy of punishments available (the “coda” to section 71(1) of the 1955 Act). 18. The powers of punishment of courts-martial (general and district) are set out in section 85 of the 1955 Act: “(1) A general court-martial shall have power to try any person subject to air force law for any offence which under this Act is triable by court-martial, and to award for any such offence any punishment authorised by this Act for that offence. (2) A district court-martial shall have the powers of a general court-martial except that it shall not try an officer or sentence a warrant officer to imprisonment, discharge with disgrace, dismissal or detention, and shall not award the punishment of death or of imprisonment for a term exceeding two years or make an order committing a person to be detained under section 71AA of this Act for a period exceeding two years.” 19.", "A person guilty of theft is liable on conviction on indictment to imprisonment for a term not exceeding ten years or, on summary conviction, to imprisonment for a term not exceeding six months or a fine or both (section 7 of the Theft Act 1968). B. The court-martial – participants and procedure 1. The commanding officer (CO) 20. An allegation that a person subject to air-force law has committed an offence must be reported to the CO of the accused.", "The CO must investigate the charge, after which he may refer the matter to the higher authority (section 76(5)(b) of the 1955 Act). 2. The higher authority 21. The higher authority is a senior RAF officer (the Air Officer Commanding). He is not legally qualified.", "He must decide, in respect of cases referred to him by a CO, whether to refer the matter back to the CO to be dealt with summarily (unless the accused has already elected trial by court-martial); to refer the matter to the prosecuting authority for a decision as to whether the accused should be prosecuted; or to drop the charges. The higher authority's decision is essentially a command decision, the higher authority being required to ask himself whether there are service reasons for prosecuting or not. Once the higher authority has taken this decision, he has no further involvement in the case. 3. The prosecuting authority 22.", "The role of prosecutor is performed by the prosecuting authority. He is appointed by the Queen and must have been legally qualified for ten years (section 83A of the 1955 Act). The prosecuting authority has a staff of between six to eight RAF officers, who are all legally qualified (section 83C of the 1955 Act) and employed full-time on prosecuting duties. The barristers on staff are, as members of the Bar of England and Wales, subject to the professional and ethical duties of the Bar Code of Conduct (including a duty to act with independence and in the interests of justice). Similar professional obligations apply to the solicitors on staff, who are members of the Law Society of England and Wales.", "Those lawyers also apply the Code for Service Prosecutors, which has been endorsed by the Attorney General. 23. Following the higher authority's decision to refer a case to it, the prosecuting authority has an absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court-martial would be appropriate and what charges should be brought. The prosecuting authority also prefers the charges, conducts the prosecution (Part II of Schedule I to the 1996 Act) and, in particular, has the power to make all decisions concerning the prosecution (section 83B(7) of the 1955 Act). 24.", "The prosecuting authority (Air Vice Marshal Weeden) was, at the relevant time, also Director of Legal Services (RAF). In his prosecuting role, he was answerable solely to the Attorney General. As Director of Legal Services (RAF) he was answerable to the Air Member for Personnel/Commander in Chief of Personnel and Training Command. Air Vice Marshal Weeden was not reported on in relation to his performance as the prosecuting authority, although he was reported on in relation to his role as Director of Legal Services (RAF). Annual appraisal reports on prosecuting officers were drawn up by 1st reporting officers within the prosecuting authority.", "4. The court administration officers (CAOs) 25. CAOs are RAF officers appointed by the Defence Council. Once notified of a prosecution by court-martial by the prosecuting authority, a CAO is responsible for making the arrangements for courts-martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court-martial. Before commencement of the court-martial hearing, the power to dissolve it is vested in the responsible CAO.", "The Courts-Martial Administration Unit discharges the administration and functions of the CAOs on their behalf and at their direction. 26. A district court-martial comprises a judge advocate, a president and not less than two serving air-force officers (“the ordinary members”) of at least two years' experience in the RAF (section 84D of the 1955 Act). 5. The judge advocate 27.", "The Judge Advocate General and his staff of judge advocates are appointed by the Lord Chancellor and are civilians who must have at least seven years' experience as advocates or five years' experience as barristers. A judge advocate is appointed to each court-martial (section 84D(1) of the 1955 Act) by the Judge Advocate General. 28. A judge advocate is robed and sits in the centre with the president and one of the members on his left and the other member on his right. A judge advocate's role during a court-martial is to ensure the fair and regular conduct of the proceedings.", "He controls the course of the evidence and rules on legal objections. All rulings and directions on questions of law (including questions of procedure and practice) are given by the judge advocate in open court and are binding on the court-martial (section 84B(3) and (4) of the 1955 Act). In this respect, judge advocates have available to them the same model directions (prepared by the Judicial Studies Board) as are available to Crown Court judges. Once the court-martial hearing has commenced, the power to dissolve it is vested in the judge advocate. 29.", "A judge advocate also delivers a summing-up and further directions in open court before the members of the court-martial retire to consider their verdict, in the same way as a Crown Court judge would direct the jury. The judge advocate does not retire with the president and ordinary members and has no vote on verdict: as the members of the court-martial are the sole arbiters of fact, they alone must decide whether the charge has been proved or not (section 96(1) and (1A) of the 1955 Act). Following the deliberation on verdict, the judge advocate checks the findings. If he is satisfied that they are not contrary to law, the findings are announced. If he is not so satisfied, he gives the president and ordinary members further directions in open court, following which they retire to reconsider their findings in the light of the judge advocate's directions (Rule 72(3) and (4) of the 1997 Rules).", "The judge advocate retires with the other members of the court-martial for the deliberations on sentence (during which he can give, if necessary, guidance on the appropriate sentence to be imposed) and votes on sentence. 6. The president of a court-martial and permanent presidents of courts-martial (“permanent presidents”) 30. The president of a court-martial ensures that the hearing is conducted in accordance with service tradition (Rule 33 (1) of the 1997 Rules). During the deliberations on verdict, the president chairs the discussions.", "31. The post of permanent president was first created in 1941, not by any statutory provision but rather as a matter of policy. Permanent presidents were selected from among serving RAF officers of suitable age and rank; they have always had the rank of wing commander. Legal qualifications or experience were not required. The appointment was full-time, was usually expected to be for a period in excess of three years and, almost without exception, was the officer's last posting before his retirement.", "The Air Secretary had the power to terminate the appointment of a permanent president, although this never happened. While appraisal reports were not prepared on permanent presidents sitting in army courts-martial, such reports were made on those sitting in RAF courts-martial. However, the reports did not concern their judicial decision-making. 32. In R. v. McKendry (6 March 2000, unreported), the judge advocate held that a particular permanent president could not be regarded as independent and impartial for the purposes of Article 6 § 1 of the Convention.", "Although the ruling was limited to the particular case, recourse to permanent presidents was abandoned pending the outcome of the judgment of the House of Lords in R. v. Boyd, Hastie and Spear Saunby and Others (“R. v. Boyd and Others”). That judgment was delivered on 18 July 2002 (see paragraphs 63-76 below), but permanent presidents have not been reintroduced to RAF courts-martial. 7. The ordinary members of courts-martial 33.", "There is no requirement that the ordinary members of courts-martial should have formal legal training (Rule 17(b) of the 1997 Rules). 34. Certain officers cannot be selected for courts-martial. Section 84C(4) of the 1955 Act provides that the CAO, the COs of the accused, members of the higher authority, investigating officers and all other officers involved in inquiring into the charges concerned are all excluded from selection. Rule 17 of the 1997 Rules excludes from selection an officer serving under the command of the higher authority referring the case, the prosecuting authority and the CAO.", "The Queen's Regulations for the RAF (QR 1154(f)) further underline that, so far as is practicable, a court-martial is to be composed of officers from different RAF stations. 35. At the relevant time (between 1997 and early 2000), ordinary members were randomly selected from a volunteer database for each court-martial. Individual officers were allowed to volunteer by completing a standard form or, alternatively, over the telephone. The information so provided would be entered on a computer database by the CAO.", "When members were required for a court-martial, the CAO looked for members in the database who were not excluded from participating in a court-martial. If volunteers could not be found in this way, a station would be selected from an alphabetical roster in each command using a separate database. The station would then be notified of those officers on that station, if any, who were on the volunteer database and the station would then be responsible for designating the officer(s) and informing the CAO. 36. The ordinary members remain subject to RAF discipline in the general sense since they remain RAF officers, but they are not reported on in relation to the carrying out of their duties as members of the court-martial and, in particular, in relation to their judicial decision-making.", "Attempting to influence, or influencing, a member of a court-martial amounts to the common-law offence of perverting the course of justice and/or to the offence of conduct to the prejudice of good order and air-force discipline (section 69 of the 1955 Act). 8. The court-martial hearing 37. When the members have been designated and the court-martial has been convened, the members are sent the Courts-Martial Administration Unit (RAF) briefing notes for court-martial members (see paragraphs 45-62 below) along with a list of prosecution witnesses. The members are required to examine the list and to tell the CAO if any of the witnesses are known to them.", "They are also advised that, should they subsequently discover that they do know someone, they should inform the judge advocate. 38. At the start of the court-martial hearing, the names of all of the members of the court-martial are read out and the accused can object to any sitting member (section 92(1) of the 1955 Act and Rule 40 of the 1997 Rules). Each member of an RAF court-martial must take the following oath: “I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to law without partiality, favour or affection, and I do further swear that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial, unless thereunto required in due course of law.” 39. Deliberations of the court-martial members are confidential, a member being forbidden to reveal any opinion or vote.", "The members of the court-martial are required to speak during deliberations, and at the close of deliberations to vote on verdict and sentence in ascending order of seniority. Decisions on verdict and sentence are reached by majority vote (section 96 of the 1955 Act). The casting vote on sentence, if needed, rests with the president (section 96(5) of the 1955 Act) who, at the time of the applicant's court-martial, gave the reasons for the sentence in open court. Under the present procedure, those reasons are given by the judge advocate (Rule 80(2) of the 1997 Rules). 9.", "The reviewing authority 40. All guilty verdicts reached, and sentences imposed, by a court-martial must be reviewed by the reviewing authority within prescribed time-limits (section 113 of the 1955 Act). Although ultimate responsibility rests with the Defence Council, the review is, as a matter of practice, generally delegated to the Air Secretary or to such officer who at that time is carrying out the duties of the Air Secretary (section 113(5)(b) of the 1955 Act). Post-trial advice is received by the reviewing authority from the Judge Advocate General, who advises whether or not the conviction or sentence should be altered in the convicted person's favour. This advice is not binding, but is generally accepted by the reviewing authority.", "It is disclosed to the accused, who has the right to present a petition to the reviewing authority. 41. The reviewing authority may substitute a finding of guilt which could have been made by the court-martial and if the court-martial must have been satisfied as to the facts which would justify making that finding (section 113AA(2) of the 1955 Act), and it may also “pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper” (section 113AA(4) of the 1955 Act). The reviewing authority also has the power to quash any verdict of guilt and associated sentence and to authorise a retrial (section 113A(1) of the 1955 Act). It is then for the prosecuting authority to decide whether to seek a retrial.", "While the person concerned is not specifically heard by the reviewing authority on the question of retrial, the decision of the prosecuting authority to seek a retrial can be challenged by an accused as an abuse of process. If convicted following a retrial, an individual retains his access on verdict and sentence to the Courts-Martial Appeal Court (see paragraphs 42-44 below). The reviewing authority gives a reasoned decision and, should it substitute a finding of guilt and/or sentence, that ruling is treated for all purposes as if it was reached or imposed by the court-martial itself. 10. The Courts-Martial Appeal Court 42.", "The Courts-Martial Appeal Court is a civilian court composed of judges from the Criminal Division of the Court of Appeal. A convicted person has a right of appeal to the Courts-Martial Appeal Court against both conviction and sentence (section 8 of the Courts-Martial (Appeals) Act 1968, as amended – “the 1968 Act”). 43. An appeal against conviction will be allowed where the Courts-Martial Appeal Court finds that the conviction is unsafe, but dismissed in all other cases. The test of what is “unsafe” is the same as that applied in appeals against convictions by the civilian criminal courts.", "An appeal against sentence may be allowed where the Courts-Martial Appeal Court considers that the sentence is not appropriate for the case (section 16A of the 1968 Act). It has power, inter alia, to call for the production of evidence and witnesses, whether or not produced at the court-martial (section 28 of the 1968 Act). It can also authorise a retrial (section 19(1) of the 1968 Act). 44. In R. v. McKendry (judgment of the Courts-Martial Appeal Court of 20 February 2001), the appellant pleaded guilty to a charge of absence without leave and was sentenced to, inter alia, 265 days' detention.", "The reviewing authority rejected his petition and Mr Justice Ouseley gave the judgment of the Courts-Martial Appeal Court. Having noted in detail the advice of the Judge Advocate General to the reviewing authority, he quoted as follows from a prior judgment of the Courts-Martial Appeal Court (R. v. Pattinson, judgment of 25 January 1999): “In our judgment, the Court has to bear in mind, in dealing with an appeal of this kind, ... the somewhat 'hybrid jurisdiction' which [the Courts-Martial Appeal Court] exercises; in that it is clearly free to correct any injustice, but it nonetheless has to be mindful that those imposing and confirming sentences, particularly, it is to be said ... in relation to an offence of desertion, are particularly well placed and indeed better placed than [the Courts-Martial Appeal Court] in assessing the seriousness of offending in the context of service life.” Mr Justice Ouseley continued: “The offence of going absent without leave, as indeed the offence of desertion, is not one in respect of which any civilian parallel exists. The sentencing considerations involve factors that are particular to the armed services, in respect of which their judgment and experience are entitled to great weight. A court should be reluctant to interfere with such courts-martial sentencing decisions, particularly where the Judge Advocate General has reviewed the matter and has dismissed the petition in the terms in which he did here. The considerations particular to this sort of military offence relate to the significance of the offence for the maintenance of military discipline and efficiency, the need for deterrence, the significance of rank and the availability of other measures from dismissal to loss of rank and pay, which are in many ways not available or not paralleled in the civilian sphere.", "Indeed some of those factors would also be of particular weight when the Courts-Martial Appeal Court is dealing with offences which do have parallels in the civilian sphere, and would justify caution in interfering with courts-martial sentences; even more so do they justify caution when dealing with offences which have no parallel in the civilian sphere.” R. v. Holtby-Smith (judgment of the Courts-Martial Appeal Court of 26 February 2003) concerned a retrial following a decision of the reviewing authority. Lord Justice Kennedy in the Courts-Martial Appeal Court stated as follows: “The Reviewing Authority directed ... that the Prosecuting Authority consider whether there should be a retrial. That was an inappropriate direction on the part of the Reviewing Authority because under section 113A of the [1955 Act] the decision whether or not to order a retrial must be one for the Reviewing Authority itself and not for the Prosecuting Authority, though of course the Reviewing Authority could, if so disposed, canvas the views of the Prosecuting Authority, and of the proposed defendant, as to whether or not there should be a retrial. Following that, the Reviewing Authority was advised of the error of its approach and ... directed a retrial in the interests of justice ... If [such a] decision of the Reviewing Authority was to be challenged, it could only be challenged by means of judicial review ... ” In R v. Ball and R. v. Rugg (judgment of the Courts-Martial Appeal Court of 12 February 1998), the sentence of the court-martial was one year's detention and the reviewing authority substituted a sentence of one year's imprisonment.", "The Courts-Martial Appeal Court quashed the latter sentence and replaced it with a sentence of nine months' detention. C. The Courts-Martial Administration Unit (RAF) briefing notes for court-martial members issued in July 1999 45. The briefing notes are sent by the Courts-Martial Administration Unit to the members selected for a court-martial. The notes applicable at the time of the applicant's court-martial (February 1998) could not be located by the parties. The notes issued in July 1999 are described below.", "46. The introductory part of the notes was entitled “Important points for members of courts-martial” and provided as follows: “Before trial 1. Read the accompanying briefing document. 2. Contact the Courts-Martial Administration Unit (CMAU) if you are wrongly described in the convening order.", "3. If you think that you may not be eligible to sit as a member of the court-martial – e.g. because you know the accused or something about him or a witness, or for any other reason – tell the CMAU or, if you are already at court, ask to see the Judge Advocate privately and tell him. Do not mention your concerns to anybody else. 4.", "Do not attempt to find out any details of the case in advance of going to court, and do not speak to any one, or allow anybody to speak to you about it – including when you arrive at the unit where the court-martial is to be held. At the trial 5. Once the trial has started you must not talk to anyone about the case (other than the remaining members of the court when all together) for as long as it continues. 6. Listen carefully to the witnesses and advocates, and to what the Judge Advocate tells you; and reach your decision only on what you hear in court.", "7. You may only question witnesses through the Judge Advocate, or with his permission. 8. You must not visit the scene of the alleged offence unless the Judge Advocate so directs, when everyone involved in the case will go. After the trial 9.", "You must never reveal anything to anyone about the deliberations on finding or sentence unless required to do so '... in due course of law'.” 47. Paragraph 2 of the briefing notes emphasised the central role of the judge advocate by telling the members of the court-martial that: “The main thing to remember is that the Judge Advocate will conduct the court-martial ... He will therefore decide all questions of law, practice and procedure ... He is a member of the court and his rulings and directions are binding on the other members of the court and, of course, the parties to the proceedings. Subject to the Judge Advocate's conduct of the trial, it will be the President's duty to ensure that the trial befits the traditions and standards of the Service; and, in particular, that officers and other persons under instruction do not interfere in the trial ...", "The following pages set out in general terms the order of events at a court-martial. Bear in mind, however, that the Judge Advocate may not follow it to the letter if he decides that the particular circumstances of the case do not warrant it. The Judge Advocate may also, if the interests of justice require, dissolve the court before conclusion of the trial.” 48. The notes went on to warn the members as follows: “3. When you arrive at the Unit, do not speak to any Unit personnel ... and certainly not to any Unit executive.", "If you disregard this direction you may find yourself inadvertently talking to, for example, a witness or a lawyer involved in the case, which in turn might result in you being debarred from the trial or, indeed, the trial being prejudiced. If someone has spoken to you and you have any doubts about your position in this respect, you must tell the Judge Advocate privately before the trial commences. 4. Mention has been made above of the President's duties. Apart from that, the function of the President and the other officer members is to decide, on the evidence, whether the accused is guilty or not guilty; and if guilty, then to decide, together with the Judge Advocate, the sentence to be imposed.", "The Judge Advocate will tell you all you need to know about the law and procedure in order to discharge those functions.” 49. Paragraph 6 informed the members that they were: “... exempted from occupying public accommodation on the accused's Unit. Justice must manifestly be seen to be done and this aim is assisted by your being seen to avoid local Unit influences.” 50. Paragraph 8 of the briefing notes went on to advise that: “Save for resolving any queries members may have about court etiquette and procedure (e.g. putting on and removal of head-dress, etc.)", "under no circumstances must the President purport to carry out any form of briefing with other members of the court in the absence of the Judge Advocate. However, he should at this stage make sure the officers under instruction are aware of their duty not to do anything which interferes with the conduct of the trial – e.g. must not say anything or make gestures or imply they have any prior knowledge about the case or the accused, etc.” 51. Paragraphs 9 and 10 provided: “9. It is the [CAO]'s duty to ensure that the officer members of the court are qualified to act as members, and are not ineligible in any way, i.e.", ": that they have the requisite number of years' commissioned service, for example; and that they have not sat as members of a court-martial which has tried the accused before, or been involved in any investigation or inquiry into matters relating to the subject matter of the charge against the accused ... However, if before the date of trial, you think you may be ineligible, or not qualified to sit, or for example know something about the accused which could prejudice your impartiality, or know someone who might be a witness in the case (you will receive prior notice from the CAO of persons who may be called as prosecution witnesses) you must not mention the matter to any other member but should tell the CAO who will, if necessary, arrange for your place on the court to be taken by someone else. If your concern about any of the above matters does not arise until you get to court, you must not talk about it to anyone else but should ask to see the Judge Advocate privately and tell him. Likewise, if during the trial you realise that, e.g. you know a witness, you should tell the Judge Advocate privately without mentioning it to anyone else.", "10. Before the court is opened, the Judge Advocate may join you in your room briefly and, if he does, will answer any queries about this briefing document. If he does not meet you beforehand and you have any such queries, you should send him a message to that effect through the Court orderly.” 52. Paragraph 15 provided that the convening order would be read when everyone was assembled in the courtroom, that the members of the court-martial would identify themselves and that the judge advocate would ask the accused if he or she objected to any of the members. The judge advocate would then administer the oath to each member of the court-martial individually (paragraph 17 of the notes).", "53. Paragraph 20 informed members that, when the opening formalities were complete: “... The Judge Advocate may then warn the court not to talk to anyone else about the case for as long as it continues. That includes family, friends, work associates, the prosecutor, defence counsel and, most importantly, the accused and anyone who may be a witness. To that end, other than when the Judge Advocate is sitting alone, members are not to leave the courtroom during the trial except to go to the lavatory, and for any overnight or luncheon adjournment; and are not to associate with Unit personnel either professionally or socially until it is over.", "Refreshments will be brought into the courtroom as required.” 54. Paragraph 21 of the notes provided: “The President and members must not, when taking refreshments in the courtroom, or at any other time, including when sitting alongside the Judge Advocate, look at papers lying on the desks of the Judge Advocate, prosecutor or defence counsel. Such papers might include information which the court must not see under any circumstances.” 55. Paragraph 29 (reflecting Rule 62(2) of the 1997 Rules) pointed out that the president and ordinary members of the court-martial might only put questions to a witness through the judge advocate. If at the end of the witness's evidence they felt that they must hear that witness on a particular question, then the question was to be passed on in writing to the judge advocate, who could put it to the witness in the correct way.", "56. Paragraph 34 (drawing on Rule 69 of the 1997 Rules) provided that, following the addresses of the prosecuting and defence counsel, the judge advocate would sum up the main points of evidence and direct the other members of the court on the law relating to the case. The members of the court-martial were not to ask the judge advocate any questions during his summing-up, but they could ask in writing for further directions, which the judge advocate had to give in open court. 57. Paragraph 35 (reflecting rule 70 of the 1997 Rules) dealt with deliberations on the verdict: “While the court is deliberating on the findings, no one is to be present except the President, members and officers under instruction.", "The President and members are not to separate until the finding has been reached, unless the Judge Advocate directs that in the interests of justice they may separate ... If any person has to leave the courtroom for personal reasons, he must be told by the President not to speak to any person on any account. If the court wishes to hear again evidence recorded by the VCR, the Judge Advocate must be told and, on his direction, the court must be reopened and the passage read in open court.” 58. Further guidance on deliberations was given in paragraph 38 of the briefing notes: “The President will normally initiate the discussion on the issue of guilt or innocence. The President should ensure that every court member present gives his opinion as to the finding on each charge separately, in ascending order of seniority commencing with the junior member.", "A unanimous decision is preferable, but a majority of votes will decide the issue, and the finding of the majority will be recorded as the finding of the court. The President should write down the finding(s) on the record of findings sheet and sign it. Prior to reopening the court, the President should remind any members overruled by the majority that they must now adopt the finding of the court. This is important if it becomes necessary to consider the sentence, as their previous feelings should not influence their decisions.” 59. Paragraph 39 explained the process by which the judge advocate would review the record of the deliberations to check whether the findings were not contrary to law and his related powers (see also paragraph 29 above).", "This paragraph also noted that the judge advocate “may, for sentencing purposes, inquire into any finding of fact reached by the court during its deliberation on finding ... though it is anticipated he will exercise this power very sparingly”. 60. Paragraph 25 explained what was to happen when sentence was being considered, either after a guilty plea or following conviction: “The court will close to deliberate on sentence, i.e. no one will be present save for the members (including, of course, the Judge Advocate) and any person under instruction. The Judge Advocate will initiate discussion on the sentence and will inform the members, e.g.", "about punishments and the principles to be observed. Sentence will be determined by a majority of votes if necessary and the opinions of the officer members will be given orally in ascending order of seniority, commencing with the junior member. The Judge Advocate will decide where he votes in the order. In the case of an equality of votes, the President has a second or casting vote on sentence which is exercisable once, i.e. he has a final, determining vote.", "When sentence has been decided, it is entered on the record of sentence which the Judge Advocate will have. The President will sign that record, as will the Judge Advocate.” 61. Finally, paragraph 44 provided as follows: “After the President has announced the trial is concluded and directed the court orderly to carry on, and the Judge Advocate has dissolved the court, the President may invite the officers under instruction to express their views about the case. Thereafter, he should remind them of the oath of secrecy they have taken before releasing them. The court orderly should be instructed to burn or shred all scrap paper.", "...” 62. An aide-mémoire for non-permanent presidents of courts-martial was annexed to the briefing notes (Annex A). This document described the court-martial procedures from the point of view of the duties and role of the president. Annex B to the notes outlined the court orderly's duties (essentially to ensure the smooth running of the court-martial). Annex C contained the general rules for personnel attending courts-martial which concerned the wearing of head-dress, seating arrangements for witnesses and members of the public and other matters of etiquette.", "D. R. v. Boyd and Others (House of Lords, 18 July 2002) 63. The appellants (from both the RAF and the army) had been convicted by a district court-martial (apart from one who had pleaded guilty). Their appeals to the Courts-Martial Appeal Court were unsuccessful. Before the House of Lords, three of the appellants argued that the permanent president's role meant that their courts-martial lacked independence and impartiality. The remaining appellants challenged more generally the compatibility with Article 6 § 1 of the Convention of their trials by court-martial on charges of an offence against the ordinary criminal law.", "The House of Lords granted leave to appeal. 64. Prior to the delivery of the House of Lords' judgment in that case, a Chamber of this Court adopted its judgment in Morris v. the United Kingdom (no. 38784/97, ECHR 2002-I), in which the Chamber concluded that Mr Morris's (army) court-martial, convened under the 1996 Act, fell foul of the independence and impartiality requirements of Article 6 § 1 of the Convention. 65.", "Subsequently, the House of Lords unanimously dismissed the appeal in R. v. Boyd and Others. Lord Steyn, Lord Hutton and Lord Scott of Foscote agreed with the detailed judgments delivered by Lord Bingham of Cornhill and Lord Rodger of Earlsferry. 1. The judgment of Lord Bingham of Cornhill 66. Lord Bingham rejected the challenge to the impartiality and independence of the permanent president, agreeing with the Chamber's finding on the point in Morris, cited above: “I do not for my part doubt that ... the European Court [was] correct.", "[Permanent presidents] are appointed to that office in the closing years of their service careers, whether in the army or the [RAF]. They are officers who have no effective hope of promotion and no effective fear of removal. While no doubt they are, as officers, answerable for any extra-judicial delinquency, as any judge might be, they are answerable to no one for the discharge of their decision-making function. The only factual matters on which [the appellants] could rely were the reports written on Wing Commander Chambers who presided [at one of the RAF courts-martial] (there being no report on any army [permanent president]). It would in my opinion be preferable if no annual report were written on officers serving as [permanent presidents], but those on Wing Commander Chambers gave no support in substance to [the appellants'] argument.", "While praising the wing commander's efficiency and effectiveness as a [permanent president], they made no allusion at all to the quality or outcome of any of his judicial decisions, but instead made express reference to the isolated, unsupervised and independent nature of his role. There is no substance in this challenge.” 67. As to the role of the ordinary or junior members of the court-martial, Lord Bingham found as follows: “It goes without saying that any judgment of the European Court commands great respect, and section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account, as it routinely does. There were, however, a large number of points in issue in Morris v. the United Kingdom, and it seems clear that on this particular aspect the European Court did not receive all the help which was needed to form a conclusion. It is true that the junior officers who sit on courts-martial have very little legal training, but that is also true of the [permanent president] whose presence was accepted [in Morris] as a guarantee of the rights of the accused.", "It is also true that junior officers sitting on courts-martial remain subject to army discipline and reports. But there is nothing to suggest that any report ever is or ever has been made on any junior officer's decision-making as a member of a court-martial, and it is hard to see how any such report could be made given the prohibition on disclosure of the deliberations of the tribunal in the oath taken by the members. There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision-making, and again it is hard to see how they could. It is true that there is no statutory bar on an officer being made subject to external army influence when sitting on the case. Any person seeking to influence the decision of a sitting member of a court-martial otherwise than at the hearing would, however, be at risk of prosecution either for perverting or attempting to pervert the course of justice or under section 69 of the 1955 Act.", "The officer members are drawn from a different command from the accused. Briefing notes sent to officer members of courts-martial before they sit enjoin them not to 'speak to any unit personnel and certainly not to any unit officer who may be attending the trial in an official capacity or as a spectator'. They are instructed in writing not to talk to anyone about the case (other than the other members of the court-martial, when all are together) for as long as the trial continues, and this instruction is routinely emphasised by the judge advocate. The officers do not occupy accommodation at the unit of the accused and are told to be seen to avoid 'local unit influences'. They are instructed 'not to associate with Formation or Unit personnel either professionally or socially until the trial is over'.", "At the outset of the hearing the officers take an oath in terms quoted by the European Court in [paragraph 27 of its judgment in Morris], swearing to try the accused 'according to the evidence' and to 'administer justice according to the Army Act 1955 without partiality, favour or affection'. In considering the independence and impartiality of the [permanent president] both the [Courts-Martial Appeal Court in the appellants' cases] and the European Court in Morris ... attached weight to established convention and practice. In my opinion the rules governing the role of junior officers as members of courts-martial are in practice such as effectively to protect the accused against the risk that they might be subject to 'external army influence', as I feel sure the European Court would have appreciated had the position been more fully explained.” 68. Turning to the criticism of the reviewing authority in Morris, Lord Bingham noted: “Its role can certainly be seen as anomalous, since ordinarily a binding decision of any court cannot be disturbed otherwise than (exceptionally) by itself or by a superior appellate court. It is however to be noted that the review of conviction and sentence carried out by the reviewing authority, whether the accused seeks such review or not ... cannot work otherwise than to the advantage of the accused.", "The reviewing authority cannot substitute conviction of a more serious offence, nor can it substitute a sentence which is in its opinion more severe (section 113AA(4)). This subsection does not confer a discretion, but calls for an exercise of judgment. It is essentially the same exercise of judgment as is required of the Court of Appeal ... which has not given rise to difficulty in practice. If the reviewing authority were to substitute a sentence which the accused considered to be more severe than that imposed by the court-martial, it would be open to the accused to challenge the substituted sentence on appeal to the Courts-Martial Appeal Court, and it is important to note that the intervention of the reviewing authority in no way diminishes the rights of the accused on appeal. It is difficult to see any analogy with the situation which the European Court considered in Brumarescu v. Romania ... where the applicant, with a final and irreversible judgment of a court in his favour, was deprived of the benefit of that judgment by a later decision in proceedings initiated by a party not involved in the earlier case.", "If a court-martial is not an independent and impartial tribunal for the trial of civil offences committed by service personnel in England and Wales, the reviewing authority could not be relied on to save it. But if it is, I find it difficult to understand how the role of the reviewing authority can undermine or reduce its independence and impartiality. [The appellants] recognised the difficulty of this argument and did not seek to sustain the judgment of the European Court on the point.” 69. The appellants had also generally argued that the whole culture of the services was such as to incline those who took part in courts-martial to attach excessive weight to the values of discipline and morale, to the point of rendering a trial unfair. It was argued that the ritual accompanying courts-martial was oppressive and unfair.", "Lord Bingham observed: “I would for my part have no hesitation in agreeing that a court-martial is a court of law, not a parade, and its procedures (while properly involving some formality) should be those appropriate to a court of law and not the parade ground. I would also accept that officers serving on courts-martial will disapprove of those found to have acted in breach of the law governing their respective service. But judges and jurors in the Crown Court will similarly disapprove of those found to have infringed the ordinary criminal law. There is no reason to think that in the former case any more than in the latter such disapproval will infect the tribunal's approach to deciding whether the particular accused has broken the law in the manner charged. Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny.", "In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so.” 2. The judgment of Lord Rodger of Earlsferry 70. Lord Rodger rejected the suggestion that, by its very nature, a trial of a civilian offence by court-martial was incompatible with Article 6 § 1 of the Convention and he referred, in this respect, to this Court's judgment in Engel and Others v. the Netherlands (judgment of 8 June 1976, Series A no. 22) and to Morris (cited above, § 59). Since the trial by court-martial did not in itself violate Article 6 § 1, the decision as to whether the court-martial was to be regarded as an independent and impartial tribunal depended on the safeguards which were in place.", "He noted generally in this respect: “A submission of this kind requires one, as a starting-point, to consider what is meant by the requirement that a tribunal should be independent and impartial. As the European Court noted in Morris ... the concepts of independence and objective impartiality are closely linked. In the present cases, in substance, the court-martial must be guarded from the risk of influence by the prosecution and guarded from the risk of influence by the relevant service authorities, especially superior officers who might wish to secure some particular result, supposedly in the interests of the morale or discipline of the service or of some particular unit. As a result of the abolition of the role of the convening officer by the 1996 Act, no issue was raised in these cases as to the independence of the members of the tribunal from the prosecution. On the other hand, Article 6 does not require that the members of the tribunal should not share the values of the military community to which they belong any more than it requires that the judge or members of the jury in a civil court should be divorced from the values of the wider community of which they form part.", "What matters is that, while sharing the values of the service community, the members of the court-martial should put aside any prejudices which they may have and act – and be seen to act – independently and impartially in deciding the issues in the case before them.” 71. As to permanent presidents, Lord Rodger observed that, while there had been no appraisal reports on permanent presidents in the army since 1997, the RAF had continued the practice of preparing reports on permanent presidents. He was of the view that “that practice [was] undesirable and, as the army experience show[ed], unnecessary. It would be better if it were discontinued”. However, he went on to observe that such reports generally, and the ones completed in the case before him, commented on the manner in which the permanent president had tackled his role as a permanent president (referring to the administrative aspects of the job) and did not bear on his actual decisions when sitting in a court-martial.", "Indeed, Lord Rodger noted that the reports in question had recognised that the permanent president's role was one in which the president was “isolated and unsupervised and which require[d] independence” which the Air Secretary “honour[ed] and respect[ed]”. The reports did not therefore give the slightest reason to doubt the permanent president's independence. On the contrary, he considered that “ ... all involved in making these reports were well aware of the need not to intrude upon the decisions reached by him when sitting as president. Even had anyone wished to intrude, the oath of secrecy taken by the members of courts-martial would have made it impossible to investigate those decisions.” 72. As to the other members of the court-martial, Lord Rodger noted the conclusion of the Chamber in Morris.", "He also observed, however, that “for whatever reason ... the European Court was given rather less information than the [House of Lords] about the safeguards relating to the officers serving on courts-martial”. He drew parallels between the members of the court-martial and jurors, noting that, while jurors brought certain prejudices and experiences with them to a trial, the safeguards of an oath and the trial judge's directions were considered by the domestic courts and by the European Court to be sufficient to ensure that jurors put aside their prejudices and reached a just verdict on the evidence. The members of courts-martial took a similar oath and the judge advocate gave them the same kind of directions which a trial judge would have given jurors: there was no reason to suppose that members of a court-martial would be less faithful to their oath or less diligent in applying the directions given by the judge advocate than would jurors, particularly when “trust and obedience to commands” were important to the officers sitting on a court-martial. 73. Indeed, Lord Rodger considered that the steps taken to ensure that the members of a court-martial acted independently and impartially were, on one view, even more strict than with a jury.", "Those steps had not, he noted, been outlined to the Chamber in Morris. He went on to detail those steps. In this connection, he referred to the briefing notes sent to members of the court-martial and noted as relevant safeguards those matters outlined at paragraphs 2, 3, 4, 6, 8, 9, 20, 21, 25, 29, 30, 33, 35, 36, 39, 40, 42 and 45 of those notes. Lord Rodger commented on these safeguards as follows: “The various provisions which I have quoted from the briefing notes for the members of courts-martial reinforce significantly the message, proclaimed in any event by the oath and the directions of the judge advocate, that the members are to act independently and impartially. In order to be seen to avoid local unit influences, the members are not to stay in public accommodation at the accused's unit.", "They are not to speak to unit personnel and especially not to any officer who may be attending the trial – at the risk of being debarred from the trial or indeed of the trial being prejudiced. They are not to associate either professionally or socially with such personnel until the trial is over. There is a veto on the president briefing the other members of the court in the absence of the judge advocate. The members are to tell the court administration officer if they know something about the accused which could prejudice their impartiality or if they know someone who might be a witness in the case. The members are warned not to talk to anyone else about the case as long as it continues.", "They are not to look at any papers which are before the judge advocate, prosecutor or defence counsel, for fear of seeing something which they ought not to. When they deliberate on conviction or sentence, the most junior member is to give his opinion orally first – again, obviously, with the aim of ensuring that the junior members express their own personal view, uninfluenced by the more senior members. In terms of the members' oath their deliberations are to be kept secret and this secrecy is further ensured by the instruction to the court orderly at the end of the proceedings to burn or shred all scrap paper. Again, the object is to prevent the members feeling, or coming under, any outside pressure during or after the trial by reason of their participation in the decision in the case. [The appellants] did not suggest that these were other than genuine instructions to the members which they were intended to observe.", "Nor was it suggested that the instructions were in practice ignored or that they had been ignored in these particular cases. But if they are indeed observed, I find it hard, if not impossible, to see how anyone either in the court or, more particularly, outside the court could improperly influence the members' decision either on conviction or on sentence. Certainly, it is hard to see what more could be done to ensure that, while sitting in the court-martial, the officers act not as officers subject to command but as independent and impartial members of the court, reaching the verdict and determining the sentence according to law but according also to their own individual conscience.” 74. Lord Rodger noted that there were, however, two differences between members of a court-martial and an ordinary jury, differences which he concluded did not undermine the independence of the former: “First, the routines, the periods of boredom and the pleasures, pains and pressures of service life would be unknown to most jurors today, although they would have been familiar to many of their fathers and grandfathers. By contrast, members of a court-martial know all about them and about the society in which the accused lives and works.", "[The appellants' counsel] suggested that officers on a court-martial, imbued by their training with notions of rank and discipline, would always tend to believe the evidence of a fellow officer or a non-commissioned officer rather than the evidence of a private. By contrast, he said, members of a jury, who carried no such burden of preconceptions, would be able to see more clearly and judge purely on the evidence before them. Of course, this submission was really just a matter of assertion. There was, and could be, no evidence to back it up. Indeed, it was somewhat undermined by the conviction of [two of] the appellants ... [Those appellants'] conviction was based on the evidence of [two Guardsmen] ...", "In accepting the guardsmen's evidence, the court-martial must have disbelieved the evidence of their superiors in rank ... In any event, it is possible to fashion an argument – equally a matter of assertion – that officers who are familiar with service life and who are in close contact with service personnel of all ranks may well be less impressed by mere rank and better able to gauge the underlying realities than jurors confronted for the first time with officers or non-commissioned officers telling an apparently plausible tale. Viewed in this light, the specialised knowledge and experience of the members of a court-martial could be seen as a positive advantage rather than as a disadvantage. However that may be, I see no reason to think that, when duly directed by the judge advocate, officers on a court-martial cannot properly assess the evidence and return a true verdict based on it. I therefore reject the appellants' argument on this point.", "The members of a court-martial perform a role in deciding sentence which is no part of a jury's function in the United Kingdom. I accept that, in determining sentence, the members will indeed have regard to such issues as the impact of the offence on service morale and discipline. They will, inevitably, be more aware of these effects than a civil judge would be. Therefore, while the safeguards of the independence and impartiality of the members should mean that they approach their verdict in much the same way as jurors in a civil trial, it cannot be assumed that, when passing sentence, the court-martial will necessarily give exactly the same weight to these service factors as would a Crown Court judge. The sentences which a court-martial passes may therefore not coincide exactly with the sentences which a civil judge would pass on the same facts.", "In my view that does not call the decisions of the courts-martial into question, either generally or in terms of Article 6. Any difference in sentencing does not mean that the members are not independent or impartial, but merely that, though both independent and impartial, they may assess the various factors differently ... There are ... two additional points to bear in mind. The first is that the judge advocate advises the other members on sentence and also has a vote on sentence. He will be able to bring to bear his informed view as a lawyer on what sentence would be suitable.", "The second safeguard is that any sentence imposed by the court-martial is subject not only to review by the reviewing authority but also to appeal, on the ground that it is not appropriate, with the leave of the [Courts-Martial Appeal Court]. The members of the [Courts-Martial Appeal Court] are civil judges and are in a position to correct any inappropriate punishment that the court-martial may impose by reason of the members' military background.” 75. Lord Rodger considered that all of these matters had to be borne in mind when considering the particular characteristics of the members of the court-martial to which the Chamber attached importance in Morris. He went on to identify and disagree with the specific concerns expressed by the Chamber in that case as regards the independence of the ordinary members: “The first was that the officer members had no legal training. That applies also in the present cases and indeed must apply in virtually all cases.", "As the briefing notes show, officers who may be called upon to sit on courts-martial are given some training by being allowed to sit and observe proceedings, including the members' deliberations. This should mean that, when they are eventually asked to sit, they should not find the procedures wholly unknown or strange, but it goes no further than that. While in Morris v. the United Kingdom the Third Chamber seems to have regarded the lack of formal legal training as a significant defect, as I have already noted, in Engel v. the Netherlands ... the European Court held that the Dutch Supreme Military Court was an independent and impartial tribunal, even though four of the six members were military officers with no legal training. Given the other safeguards which were in place in the present cases, I see no reason to conclude that the absence of legal training undermined the members' independence and impartiality. The European Court attached importance to the fact that the officers, other than the permanent president, remained subject to army discipline and reports.", "In so far as the members of the courts-martial in the present cases also remained subject to service discipline, they simply shared the characteristic of all serving members of the armed forces. It must have been equally true of the military members of the Dutch Supreme Military Court in Engel v. the Netherlands. Moreover, the fuller information available to the House about the safeguards in place to protect the independence of the members of courts-martial shows clearly, in my view, that, just like the Dutch officers in Engel v. the Netherlands, the officers in these cases would not have been under the command of any higher authority in their function as members of the courts-martial. Indeed, as [the Ministry of Defence] pointed out, contrary to the assumption of the European Court, there was even a formal legal bar to any superior officer trying to influence their decision, since this would have constituted the criminal offence of attempting to pervert the course of justice. It is true, of course, that, as in Morris v. United Kingdom, so also in these cases, leaving aside the permanent presidents, the officers sitting on the courts-martial would have remained subject to reports.", "[The appellants] indeed drew attention to a number of such reports where mention is made of the fact that, during the year in question, the officer concerned had sat as a member of a court-martial. In itself that must be unobjectionable since the information that the particular officer has had this experience may be relevant at some future date if, for instance, consideration is being given to appointing a permanent president. What would be objectionable would be any report which made reference, whether favourable or unfavourable, to an officer's decisions when sitting on a court-martial. But [the appellants] could point to no report where this had been done. The only report which referred to an officer's performance in relation to a court-martial was one relating to [one officer]: 'Her foray into the court-martial arena has brought particular accolades for her thoughtful and incisive contribution to the legal process'.", "The report showed that [that officer] had acted not only as junior member on several courts-martial but also as assistant defending officer to an airman tried by a general court-martial. It appears that the comment may well have related to this second role. In any event the report makes no comment on any decision reached by [that officer] when sitting as a member of a court-martial. Indeed counsel for the [Ministry of Defence] showed the House a number of statements from officers concerned with personnel matters who had read thousands of annual reports and had never seen mention of such a thing. That being so, again with the benefit of this more detailed information, I would not share the view of the European Court in Morris v. the United Kingdom that the independence and impartiality of officers sitting on courts-martial are compromised by the fact that they remain subject to the system of annual reports.", "For all these reasons I consider that those charged with administering the system of courts-martial have been at pains to put in place a series of practical safeguards which are designed to secure the independence and impartiality of those sitting on these courts. Nor is this surprising. There is not a little force in the point made by the [Courts-Martial Appeal Court] that, if service factors are to be seen as an aspect or function of the public interest, they will themselves require that the court-martial process should be, and should be seen to be, fair and impartial and, so far as possible, to achieve accurate results. Otherwise both servicemen and the public would lose confidence in it, with consequential effects on good order and discipline. Having regard in particular to the additional information which was not before the European Court, I would therefore hold that the safeguards built into the system are indeed such that no fair-minded and informed observer who had considered them would conclude that there was a real possibility that the courts-martial in these cases lacked independence or impartiality in this respect.", "In other words they were, objectively, independent and impartial. I would accordingly reject the Article 6 challenge based on the role of the officer members.” 76. Finally, Lord Rodger turned to the reviewing authority and to the finding in Morris that the role played by that authority constituted in itself a reason for finding that a court-martial had not been independent or impartial. Lord Rodger did not agree. Indeed, he noted that even the appellants before him had difficulty in supporting the Chamber's reasoning in Morris on this point.", "He continued: “The reviewing authority is, admittedly, an unusual institution. It does not operate like an ordinary court and, at a certain level of abstract theory, its existence could seem to be inconsistent with the charge against an accused being determined by only a system of 'tribunals'. That appears to be the way in which the European Court has treated it. But if, as the court indicates, the issue can also be characterised as relating to the independence of the court-martial, I find it difficult to see how the existence of this body affects that independence. It might, of course, be different if there were any suggestion that the decisions of the courts-martial were influenced by the existence of the reviewing authority, for example, because they tended to convict more readily or to impose heavier sentences in the knowledge that the reviewing authority could always quash them.", "But [the appellants] made no such submission and there is nothing whatever in the information before the House that would support it. On the contrary, [the appellants] accepted that the provision for review could only be to the benefit, and not to the detriment, of someone who had been convicted. In particular, it could provide a quick and simple means of correcting a mistaken decision by a court-martial. ... In reaching its conclusion on this point the European Court was particularly concerned by the fact that the decision as to whether any substituted sentence was more or less severe than that imposed by the court-martial would have been left to the discretion of the reviewing authority.", "When making this observation the Court does not appear to have been referred to, or to have had in mind, the coda to section 71(1) of the [1955 Act] which establishes, as a matter of law, the relative positions of particular punishments in the hierarchy of punishments set out in the subsection and which deals specifically with how detention and imprisonment are to relate to one another. Particularly when these provisions are taken into account, it is hard to see how, in reality, there is likely to be any scope for the reviewing authority to exercise the kind of discretion that appears to have troubled the European Court. In truth, counsel could refer to no case where any problem as to the relative severity of two punishments had arisen. If, by chance, however, the reviewing authority were to go wrong on the point, the person affected could ask the appeal court for leave to appeal. In all the cases under appeal except [one], the reviewing authority did not intervene, but the appellants were granted leave to appeal to the [Courts-Martial Appeal Court].", "Where they had other arguable grounds of appeal relating to conviction or sentence, the [Courts-Martial Appeal Court] dealt with them, as well as with the Article 6 grounds, in their reasoned judgments. In these circumstances I am, with due respect to the decision of the European Court in Morris v .the United Kingdom, unable to see why the mere existence of the reviewing authority, or the reduction of [a] period of detention [in one case], should lead to the conclusion that the determination of the charges against the appellants was not reached by a 'tribunal' that was 'independent and impartial' for the purposes of Article 6. I would therefore reject the appellants' Article 6 argument based on the role of the reviewing authority.” E. Relevant statistics 77. In 2002 the rate of acquittals in contested RAF courts-martial was 52%. The rate of acquittals in contested Crown Court trials has been: Year ending in March 1999: 42.8% Year ending in March 2000: 42.8% Year ending in March 2001: 44.3% Year ending in March 2002: 42% Year ending in December 2002: 37.4% THE LAW 78.", "The applicant complained under Article 6 § 1 of the Convention that his court-martial, structured as it was under the 1996 Act, lacked independence and impartiality and that the proceedings before it were consequently unfair. The relevant parts of Article 6 § 1 read as follows: “In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” I. ADMISSIBILITY OF THE COMPLAINT 79. Other than arguing that the complaint was manifestly ill-founded, the Government did not raise any other objection to its admissibility. 80. It is not disputed that the final decision in the proceedings was that of the Courts-Martial Appeal Court of 5 February 1999.", "The complaint was introduced on 8 June 1999 and, therefore, within the six-month time-limit set down by Article 34 of the Convention. Moreover, the Court considers, given the nature of the charge (theft contrary to the Theft Act 1968) together with the nature and severity of the penalty imposed (fifty-six days' imprisonment), that the court-martial proceedings constituted the determination of a criminal charge against the applicant (see Engel and Others, cited-above, pp. 34-35, §§ 82-83, and, more recently, Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 69-130, ECHR 2003-X). 81.", "The Court considers that the applicant's complaint raises questions of law which are sufficiently serious that its determination should depend on an examination of the merits, and no other grounds for declaring it inadmissible have been established. The Court therefore declares the complaint admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraphs 6 and 9 above), the Court will immediately consider the merits of the complaint. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A.", "The applicant's submissions 82. The applicant accepted that the 1996 Act had addressed some of the concerns expressed by the Court in Findlay v. the United Kingdom (judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I). However, he maintained that the post-1996 court-martial system remained incompatible with the independence and impartiality and, consequently, the fairness requirements of Article 6 § 1 of the Convention. In so submitting, he disagreed with certain of the Court's conclusions in Morris (cited in paragraph 64 above), although he endorsed those concerning the ordinary members of a court-martial and the reviewing authority. 83.", "More generally, he maintained that service tribunals should have no role to play in the trial of criminal charges against service personnel in times of peace given the nature and ethos of the armed forces. Referring to a judgment of the Supreme Court of the United States (Reid v. Covert 354 U.S. 269, at p. 1240), he pointed to the armed forces' emphasis on harsh discipline and efficiency as opposed to the protection of individual rights and underlined the pressures flowing from chain-of-command connections (past or present), from rank superiority and, at the very least, from general service influences on all service personnel involved in the courts-martial process who were clearly concerned about their pay, promotion and service career prospects. These factors alone gave rise, in the applicant's opinion, to legitimate doubts about the ability of an armed forces' tribunal to try its personnel on criminal charges independently and impartially. 84. In the alternative, he argued that his court-martial, convened in accordance with the 1996 Act, lacked independence and impartiality.", "85. He submitted that the higher authority only served to allow a Royal Air Force (RAF) officer who was not legally qualified to interfere with the prosecution process by sending a case back to an equally unqualified commanding officer (CO) for summary trial. He also suggested that the higher authority was the equivalent of the former “convening officer”. He submitted, without expanding further, that the higher authority and the CO were in a direct chain of command. 86.", "He also argued that the prosecuting authority was part of the “legal branch” which gave “general advice” to the service authorities, so that its officers were subjected to pressures in relation to career prospects and discipline. The officers carrying out the functions of the prosecuting authority were also likely to be subordinate in rank to, and subjected to pressure from, the higher authority. 87. The applicant considered that the manner in which the court administration officer (CAO) selected members of courts-martial lacked transparency and did not have the independence and impartiality of the prior volunteer system. 88.", "He further observed that the permanent president of courts-martial was not legally qualified and argued that a permanent president would be “case-hardened”. Being of superior rank to the ordinary members of a court-martial, a permanent president would necessarily dominate them. Moreover, the applicant was not convinced that the permanent president at his court-martial had not been influenced by the procedure by which permanent presidents were reported on. 89. As to the judge advocate, the applicant considered that paragraph 21 of the briefing notes (see paragraph 54 above) demonstrated the kind of dangers inherent in the practice of a judge advocate sitting amongst members of courts-martial.", "90. The applicant further argued that the ordinary members of his court-martial were in the same position as those in the court-martial in issue in Morris, so that the Grand Chamber should conclude in the present case that there were inadequate safeguards to exclude the risk of outside pressure and influence on them. There were, in the applicant's opinion, no new relevant facts before the Grand Chamber in the present case justifying a departure from that conclusion in Morris. It was the applicant's belief that the Courts-Martial Administration Unit (RAF) briefing notes submitted by the Government had been drawn up after the judgment in Morris had been delivered and did not resemble those applicable during his court-martial in February 1998. While there had been various versions of the briefing notes in circulation prior to Morris, those existing at the time of his court-martial “may well have” contained a requirement that court-martial members make allowance for the inadequacies of young and inexperienced service prosecuting lawyers compared to the experienced civilian defence lawyers, the applicant indicating that his legal representative's attention had previously been drawn to such requirements.", "The existence of the offence of perverting the course of justice would have been clear to the Court in Morris and, in any event, such an offence could not insulate ordinary members from outside influences and pressures which were subtle, context-related and did not concern a particular act or gesture. 91. Finally, the applicant maintained that the power of the reviewing authority to interfere with the findings of a court-martial constituted a further reason to conclude that his court-martial did not satisfy the requirements of Article 6 § 1. He relied on Findlay and Morris, cited above, and Brumărescu v. Romania ([GC], no. 28342/95, §§ 61-62, ECHR 1999-VII) and argued that the House of Lords had misapplied this Convention case-law.", "He also maintained that the review would not always operate in favour of a convicted person: a court-martial would adjust its sentences upwards in anticipation of a later reduction by the reviewing authority; the Courts-Martial Appeal Court was heavily influenced by the views on sentence and on any relevant service factors expressed by the Judge Advocate General and by the reviewing authority itself (see R. v. McKendry, cited above); the reviewing authority had the power to quash the findings of the court-martial and authorise a retrial and, while the prosecuting authority could then decide not to prosecute, the reviewing authority “set the pace” on retrials (see R. v. Holtby-Smith, cited above), a process not always beneficial to the individual; and the reviewing authority could make mistakes (see R. v. Ball and R. v. Rugg, cited above). B. The Government's submissions 92. The Government noted that, in Morris, the Court had rejected the applicant's general argument (as had the House of Lords) that service tribunals could not try service personnel on criminal charges consistently with Article 6 of the Convention. The core question in Morris and the present case was not whether military tribunals were acceptable under Article 6 in times of peace or war but rather whether the applicant had obtained a fair trial by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention, and the Government maintained that he had.", "93. In so submitting, the Government relied on the Court's conclusions in Morris, apart from those concerning the ordinary members of courts-martial and the reviewing authority. In these latter respects, the Government preferred the conclusions of the House of Lords in R. v. Boyd and Others, cited above. The Government explained that the complaints in Morris had been broad and that they had therefore attempted to select the most relevant material for the Court. However, with hindsight they realised that, regrettably, they had omitted to submit to the Court three important items of information (the clarification that ordinary members are not reported on as regards their judicial decision-making; the Courts-Martial Administration Unit (RAF) briefing notes for members of courts-martial; and the coda to section 71(1) of the 1955 Act).", "It was this material which later enabled the House of Lords to reach conclusions concerning ordinary members of courts-martial and the reviewing authority different from those in Morris. 94. The Government pointed out that the role of the higher authority was clearly defined and important, in that it allowed service considerations to be applied to the question of whether a charge should be referred back to the CO or be sent on to the prosecuting authority for a decision as to whether there should be a prosecution at all. The applicant's submission that the higher authority was superfluous and his reliance on the fact that it was not legally qualified were irrelevant to the question of the independence and fairness of a court-martial, and his arguments that it was the equivalent of the former “convening officer” and interfered with the prosecuting authority were plainly incorrect. The Government did not understand the applicant's suggestion that the higher authority was in a chain of command: in any event, it was not the higher authority who took the decision to prosecute.", "95. The Government underlined that the prosecuting authority was answerable to the Attorney General as regards the prosecuting function and delegated his prosecution functions to legal officers who formed a discrete group employed solely on prosecuting duties. The reporting processes as regards the prosecuting authority and his legal officers were entirely consistent with the requirements of independence of function. The prosecuting authority was wholly independent of the chain of command and of the judiciary, as were his legal officers and, in any event, those legal officers were subject to professional codes of conduct obliging them to act independently and in the interests of justice. There was nothing to suggest that such legal officers were under any pressure or influence in relation to their career that could conceivably call into question their independence.", "96. The court administration officers (CAOs) in the RAF and the army being identical in every material respect, the Government relied on the Court's conclusions in Morris (§ 66). 97. As to the method of selection of the members of the applicant's court-martial by the CAOs, there was, according to the Government, no evidence to suggest that there had been any interference by air-force command in that selection process and, given the fixed criteria for selection, there was no reason to doubt the independence of the court-martial either by reason of the position of the CAO or because of the manner in which members of the court-martial had been appointed. 98.", "The Government also underlined that permanent presidents worked outside of the service chain of command and that the post of permanent president was found in Morris to constitute “a significant guarantee of independence”. The judge advocate was also described in Morris as an “important guarantee” of independence (§§ 69 and 71). 99. The Government then turned to the two matters on which the House of Lords in R. v. Boyd and Others had departed from the Court's conclusions in Morris: the position of the ordinary members of courts-martial and the role of the reviewing authority. 100.", "The Government disputed the three reasons given in Morris for concluding that there were insufficient safeguards to exclude the risk of outside pressure on ordinary officer members of courts-martial. In the first place, the ordinary members in the applicant's court-martial had had some legal training (see paragraph 12 above). In any event, four of the six officers sitting in the court-martial in Engel and Others, cited above, had no legal training. Moreover, drawing a parallel between jurors and the ordinary members of courts-martial (all without legal training and guided by binding rulings on points of law from the trial judge and judge advocate respectively), the Government pointed out that this Court had never suggested that the determination of guilt by lay jurors was incompatible with Article 6 § 1 of the Convention. Furthermore, armed with the Courts-Martial Administrative Unit (RAF) briefing notes and the instructions of the judge advocate, the ordinary members would have had a very clear idea of their role and duties at the court-martial.", "Secondly, it was true that members of the court-martial remained subject to air-force discipline in the general sense because they remained air-force officers. However, members of courts-martial did not remain subject to service discipline in relation to their judicial decision-making, so that any reporting by the service authorities on them had to, and did in the applicant's case, exclude any comment on the carrying out by them of their duties as members of a court-martial. This was the position in Morris, and the Government regretted that this information had not been before the Court when it examined that case. Accordingly, the fact that ordinary members remained subject to air-force discipline did not undermine their independence (the Government referred to Engel and Others, cited above, pp. 12-13, § 30).", "Thirdly, in the Government's opinion, there were clearly sufficient safeguards of the independence of the decision-making of the ordinary members of courts-martial. Perverting or attempting to pervert the course of justice was a common-law criminal offence and an offence under section 69 of the 1955 Act. The deliberations during which the members of the court-martial voted were confidential. Each member took an oath. As with civilian jurors, there was a reasonable expectation that the ordinary members would comply with the binding directions given by the judge advocate to try the case and give a true verdict according to the evidence and without prejudice (see Pullar v. the United Kingdom, judgment of 10 June 1996, Reports 1996‑III, and Gregory v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I).", "The Government emphasised the content, and distribution to each court-martial member, of the Courts-Martial Administration Unit (RAF) briefing notes. The Government could not locate the actual briefing notes applicable at the time of the applicant's court-martial but submitted those in force in July 1999, which they stated made only minor changes to those notes in force in February 1998. According to the Government, the notes reinforced the message, proclaimed in the oath, that members were at all times to act independently and impartially and they had the effect of preventing members feeling, or coming under, any outside pressure during or after the trial. These notes had been sufficient to convince the House of Lords that ordinary members were sufficiently protected against outside influence and the Government regretted that this material had not been put before the Court when it examined the Morris case. 101.", "The Government accepted that the reviewing authority was an anomalous and unusual institution. However, this body offered certain advantages: every court-martial was automatically reviewed; a review operated more quickly (normally within thirty days) than an appeal to the Courts-Martial Appeal Court, so that the review would be finalised prior to a short sentence having been already served; and it was beneficial to good discipline that the services were seen to put matters right quickly if something went wrong during the court-martial. 102. Apart from these advantages, the Government underlined, as did Lord Bingham and Lord Rodger in R. v. Boyd and Others, that the review could only operate to the benefit of an accused as a result of the detailed hierarchy of punishments set out in the coda to section 71(1) of the 1955 Act. They regretted that they had not brought this coda to the Court's attention during its examination of the Morris case.", "If the accused considered that the reviewing authority had, nevertheless, substituted a sentence more severe than that of the court-martial, he could bring this before the Courts-Martial Appeal Court. The fact that all post-court-martial matters remained open to the Courts-Martial Appeal Court, an independent tribunal, distinguished the case from the situation in issue in Brumărescu, cited above. 103. Accordingly, the Government concluded that the role of the reviewing authority did not diminish or undermine the independence or impartiality of courts-martial. C. The Court's assessment 1.", "Relevant principles and case-law 104. The Court reiterates that, in order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence. In this latter respect, the Court also reiterates that what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and, above all, as far as criminal proceedings are concerned, in the accused. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see Findlay, cited above, p. 281, § 73, and Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, pp.", "1572-73, § 71). There are two aspects to the question of “impartiality”: the tribunal must be subjectively free of personal prejudice or bias, and must also be impartial from an objective viewpoint in that it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Findlay, cited above, p. 281, § 73). The Court notes that the present applicant did not suggest that anyone involved in his court-martial process was subjectively biased against him. Since the concepts of independence and objective impartiality are closely linked, the Court will consider them together in the present case (ibid.). 105.", "In Findlay, the Court concluded that the applicant's misgivings about the independence and impartiality of his army court-martial, convened prior to the entry into force of the 1996 Act, had been objectively justified. The Court was mainly concerned about the conflicting roles of the “convening officer” in the proceedings: he had a key prosecuting role, but at the same time appointed the members of the court-martial who were subordinate in rank to him and fell within his chain of command. He also had the power to dissolve the court-martial before or during the trial and acted as “confirming officer” after the trial, so that a court-martial's verdict and sentence were not effective until “confirmed” by that officer. 106. In the subsequent Morris case (also cited above), a Chamber of the Court examined concerns expressed about the structural independence and objective impartiality of an army court-martial convened following the entry into force of the 1996 Act.", "The Court found that service tribunals could in principle determine criminal charges against service personnel consistently with Article 6 § 1 of the Convention, although such tribunals would only be tolerated as long as sufficient safeguards were in place to guarantee their independence and impartiality (see Morris, § 59). It was also found that the 1996 Act had gone a long way towards meeting the concerns expressed in Findlay, abolishing as it did the posts of “convening officer” and “confirming officer” and separating the prosecution, convening and adjudication elements of the court-martial process (ibid., §§ 61 and 62). The Court further found that the independence of the court-martial was not undermined by the manner of appointment of its members (ibid., § 66). However, and while considering the permanent president to be a “significant guarantee of independence” and the presence of the judge advocate to be an “important guarantee”, these and other safeguards (rules on eligibility for selection and the oath taken by members) were considered insufficient by the Court to exclude the risk of outside pressure being brought to bear on the ordinary officer members (see Morris, §§ 69-72). Further, the Court found that the principle that a tribunal's binding decision should be unalterable by a non-judicial authority had been breached by the role of the reviewing authority, a principle which had been considered in Findlay (cited above) to be a component of the “independence” guarantee of Article 6 § 1 of the Convention.", "2. Application of those principles to the present case 107. The parties agreed that the relevant regulatory frameworks governing army and RAF courts-martial, which were in issue in Morris and in the present case, were the same in all material respects. However, they considered the Court's conclusions in Morris (see paragraph 106 above) to be incorrect. The applicant disagreed with the first three of those conclusions, considering that these matters remained problematic under the 1996 Act.", "The Government preferred the conclusions of the House of Lords in R. v. Boyd and Others to those of the Court in Morris as regards the independence of the ordinary members and the role of the reviewing authority. In examining the independence and impartiality of the present applicant's court-martial, the Grand Chamber has examined the parties' submissions on each of the Chamber's conclusions in Morris and assessed whether there are good reasons to depart from those conclusions (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002‑VI), bearing in mind, in particular, the information and material before it which had not been submitted to the Chamber in Morris. (a) Service tribunals and Article 6 of the Convention 108. The first point to be considered is whether a service tribunal can try criminal charges against service personnel consistently with the independence and impartiality requirements of Article 6 § 1 of the Convention.", "109. The Court reiterates that the independence and impartiality of service tribunals was examined in Engel and Others and Findlay and in certain subsequent judgments (including Coyne v. the United Kingdom, judgment of 24 September 1997, Reports 1997‑V, Hood v. the United Kingdom [GC], no. 27267/95, ECHR 1999-I, and Cable and Others v. the United Kingdom [GC], nos. 24436/94 et seq., 18 February 1999). In those cases, the Court examined in detail the structure and functioning of the relevant court-martial process, but neither the parties to those cases nor the Court raised the more fundamental question of whether service tribunals could ever determine criminal charges against service personnel consistently with the independence or impartiality requirements of Article 6 § 1 of the Convention.", "110. The Grand Chamber agrees with the Chamber's finding in Morris (§ 59) that there is nothing in the provisions of Article 6 which would, in principle, exclude the determination by service tribunals of criminal charges against service personnel. The question to be answered in each case is whether the individual's doubts about the independence and impartiality of a particular court-martial can be considered to be objectively justified and, in particular, whether there were sufficient guarantees to exclude any such legitimate doubts (see paragraph 104 above). (b) The higher authority, the prosecuting authority and the CAO 111. The Court has, in the first instance, assessed the independence and impartiality of those bodies involved in the proceedings prior to the court-martial hearing itself, namely, the higher authority, the prosecuting authority and the CAO.", "112. While the higher authority decides on the basis of service considerations whether a charge should be brought before the prosecuting authority, it is the prosecuting authority which decides whether a prosecution by court-martial should be pursued or not. The 1996 Act has not conferred on the higher authority, and there is no evidence that the higher authority fulfils, any other role in the pursuit of charges by court-martial. Since the decision to prosecute by court-martial is one exclusively for the prosecuting authority, it is not relevant to the independence of the court-martial process whether the higher authority is legally qualified or not or whether there is a chain-of-command connection between that authority and the CO. The applicant's suggestion that the higher authority is the equivalent of the former “convening officer” is clearly incorrect.", "113. The prosecuting authority is appointed by the Queen and is legally qualified. Members of his staff are legally qualified and are employed exclusively on prosecution duties. The decision to prosecute is made on the basis of legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the codes of conduct of the respective branches of the legal profession. While the prosecuting authority is also the RAF Director of Legal Services, he is answerable to the Attorney General only, and is not reported on within the service on his prosecution duties.", "There being no chain of command or service connection between the higher and prosecuting authorities either claimed or apparent, any seniority in rank of the higher authority over the prosecuting authority would not be sufficient to conclude, as the applicant suggests, that the latter is “likely to” be influenced by the former. 114. It is true that the CAOs are RAF officers appointed by the Defence Council. However, the applicant did not dispute that a CAO operates independently of the higher and prosecuting authorities, a conclusion also reached in Morris (§§ 61 and 66). Moreover, the CAO's duties are largely administrative in nature, requiring the CAO to take steps which have been regulated in some detail in the 1955 Act, the 1997 Rules and the Queen's Regulations to ensure that a court-martial hearing takes place with the necessary persons in attendance and with the required facilities in place.", "As to the more significant and sensitive task of selecting members of a court-martial, the detailed criteria and procedures to be followed by a CAO (see paragraphs 34-35 above) allow that officer little discretion in that selection and rebut the applicant's claim that the selection process lacks transparency. In addition, these criteria expressly exclude from a court-martial any officer from the accused's RAF station and any of his COs, as well as any officer who has been involved in the investigation and prosecution of the charges or in the convening of a court-martial. Furthermore, all officers selected to sit are reminded in the Courts-Martial Administration Unit (RAF) briefing notes received by them (see paragraphs 45-62 above) of these and any other factors that could render them ineligible, and members are encouraged to inform the CAO prior to the trial (or the judge advocate once the trial has started) if they are worried that they may be ineligible. 115. For these reasons, the Grand Chamber finds that the applicant's submissions concerning these three bodies do not cast any doubt on the Chamber's findings in Morris (§§ 61-62) as to the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court-martial process under the 1996 Act.", "The Grand Chamber further considers that there is no reason to doubt the independence of the decision-making of those bodies from chain-of-command, rank or other service influence. (c) The members of the court-martial 116. The Court has also examined the position of the members of the court-martial, having regard to the manner of their appointment, their terms of office, the existence of guarantees against outside pressures and whether the court-martial presents an appearance of independence (see paragraph 104 above). (i) The judge advocate 117. The judge advocate is a legally qualified civilian appointed to the staff of the Judge Advocate General (also a civilian) by the Lord Chancellor and from there to each court-martial by the Judge Advocate General.", "The independence of air-force judge advocates is not questioned by the applicant, and the Court considers that there is no ground to do so. Moreover, a judge advocate has a central role in the court-martial proceedings which, like Lord Rodger in R. v. Boyd and Others, the Grand Chamber would compare to that of a Crown Court trial judge. The judge advocate is responsible for the fair and lawful conduct of the court-martial and his rulings on the course of the evidence and on all questions of law are binding and must be given in open court. The judge advocate has no vote on verdict and does not therefore retire with the other court-martial members to deliberate on verdict. However, he sums up the evidence and delivers further directions to the other members of the court-martial beforehand, and he can refuse to accept a verdict if he considers it “contrary to law”, in which case he gives the president and ordinary members further directions in open court, following which those members retire again to consider verdict.", "The judge advocate retires with the other members in order to provide advice, deliberate and vote on sentence. Moreover, and as Lord Rodger also noted (see paragraph 72 above), there is no evidence to suggest that members (the permanent president and the ordinary members) of a court-martial would be less diligent than civilian jurors in complying with binding rulings and directions on points of law given to them. In such circumstances, the Court finds that the presence in a court-martial of a civilian with such qualifications and with such a pivotal role in the proceedings constitutes not only an important safeguard but one of the most significant guarantees of the independence of the court-martial proceedings. (ii) The permanent president 118. The Grand Chamber, like the Chamber in Morris (§§ 68-69), considers certain factors illustrative of both the permanent president's independence and the important contribution of the post of permanent president to the independence of an otherwise ad hoc tribunal.", "Most importantly, the Court observes that, while the permanent president is a serving officer, the post was a full-time one filled by a high-ranking officer (wing commander) for a number of years prior to his retirement, at a time when that officer had “no effective hope of promotion” (in the words of Lord Bingham – see paragraph 66 above). Such factors were considered demonstrative of the independence of the military members of the court-martial in Engel and Others (cited above, pp.12-13, § 30 and p.37, § 89). The Court does not accept the applicant's suggestion that the full-time nature of the post of permanent president would undermine the objectivity of that officer's judgment (see paragraph 88 above). Since the permanent president was bound by the legal rulings and directions of the judge advocate, the permanent president's lack of legal qualifications did not undermine his independence or the guarantee of independence provided by that post. While he may have been more senior in rank to the ordinary members, he could not brief them in the absence of the judge advocate and, although he deliberated on verdict alone with the ordinary members, the judge advocate exercised firm control over those deliberations both before and after they took place (see paragraphs 29 and 117 above).", "It is true that, in contrast to the army, appraisal reports were prepared on permanent presidents in the RAF and the Court would echo the concerns expressed by Lords Bingham and Rodger in this regard. However, the essential point for present purposes is that no appraisal report had been drawn up on the present permanent president since August 1997 and, crucially, such reports could not have referred to that officer's judicial decision-making. As Lord Bingham pointed out (see paragraph 66 above), permanent presidents were answerable to no one in the discharge of their court-martial functions. It is also true that there was no express provision for their irremovability and that express security of tenure would be preferable, as such a domestic provision is generally considered to be a corollary of judges' independence. However, its absence can be cured if irremovability is recognised in fact and if other necessary guarantees are present (see Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no.", "80, p. 40, § 80, and Morris, cited above, § 68). In this respect, the Court notes the finding of Lord Bingham (see paragraph 66 above) that a permanent president had “no effective fear of removal”, and it is not disputed that a permanent president has never been removed from office. (iii) The ordinary members 119. The Court considers it clear that, having regard to the matters outlined in paragraph 114 above, there was no reason to doubt the independence of the ordinary members by reason of the position and role of the CAO or because of the manner in which the CAO appointed them. 120.", "The Grand Chamber has noted the ad hoc nature of their appointment (they return to ordinary service immediately after the court-martial) and their relatively junior rank (they were junior in rank to the permanent president and may have been junior in rank to other participants in the court-martial process, including the prosecuting authority). While such tenure and rank may not in themselves undermine their independence, it is considered, as it was in Morris (§ 70), that such factors emphasise the need for particularly convincing safeguards against outside pressure being brought to bear on those officers. 121. In Morris, the Chamber went on to find important the protection offered by the judge advocate, the permanent president and the rules concerning eligibility for selection to a court-martial and the oath taken by its members. Other safeguards were also referred to in Morris, including the right of the accused to object to any member sitting in the court-martial (see paragraph 38 above); the confidentiality of the deliberations, a point repeated in the members' oath (see paragraph 38 above); and the rule whereby the member most junior in rank expresses his or her view and votes first during deliberations on verdict and sentence (see paragraphs 39, 58 and 60 above).", "Moreover, the Grand Chamber considers that the possibility of a prosecution for perverting the course of justice under the common law or under section 69 of the 1955 Act (see paragraph 36 above) was implicit in the Chamber's assessment in Morris. The Grand Chamber agrees that these constitute important safeguards of the independence of the ordinary members. 122. Nevertheless, the Chamber concluded in Morris that these safeguards were not sufficient to exclude the risk of outside pressure being brought to bear on the ordinary members because of three factors: those officers had no legal training, there were no statutory or other bars to their being made subject to external service influence and they remained subject to army discipline and reports (§§ 71-72). The Grand Chamber is of the view that the submissions and material before it in the present case are such as to justify it in departing from this latter conclusion in Morris.", "123. As to the lack of legal qualification of the ordinary members, the Court reiterates that the participation of lay judges on tribunals is not, as such, contrary to Article 6: the principles established in the case-law concerning independence and impartiality are to be applied to lay judges as to professional judges (see Langborger v. Sweden, judgment of 22 June 1989, Series A no. 155, p. 16, § 32; Fey v. Austria, judgment of 24 February 1993, Series A no. 255-A, p. 12, §§ 27, 28 and 30; and Holm v. Sweden, judgment of 25 November 1993, Series A no. 279-A, p. 14, § 30).", "The Court does not find particularly relevant the fact that the ordinary members in the applicant's court-martial attended brief legal courses. However, it notes the instruction provided to the ordinary members by the Courts-Martial Administration Unit (RAF) briefing notes (see paragraphs 45-62 above and 124 below). The Court also refers to the key role of the legally qualified and experienced judge advocate, whose directions the ordinary members would be careful to respect (see paragraph 117 above). In such circumstances, the Court considers that the independence of the ordinary members is not undermined by their lack of legal qualifications. 124.", "Secondly, the submissions to the Court in the present case have disclosed an additional safeguard of the independence of the ordinary members. The Government relied on the Courts-Martial Administration Unit (RAF) briefing notes distributed to all members of the applicant's court-martial. Admittedly, the actual notes applicable on that date could not be located by the Government, who merely asserted that the notes outlined in paragraphs 45-62 above were similar in all substantive respects to those actually distributed to members of the applicant's court-martial. However, in the absence of any precise and substantiated challenge to this assertion, the Court does not see any reason to doubt that the notes submitted to it in the present case were similar in all material respects to those actually distributed to members of the applicant's court-martial in February 1998. Moreover, the Court considers these notes to be genuine instructions to the members of courts-martial by which they were expected to abide.", "The notes provided a detailed step-by-step guide to the ordinary members of the procedures before a court-martial. They also constituted a comprehensive manual of the nature and limits of their role in those proceedings and, importantly, of the precise functions of the judge advocate and permanent president. The Court considers that the briefing notes thereby provided essential information and important orientation to officers who were appointed on an ad hoc basis to a court-martial and who had no legal qualifications and relatively little court-martial experience. Further, the provisions of the briefing notes fully instructed ordinary members of the need to function independently of outside or inappropriate influence or instruction, and of the importance of this being seen to be done, providing practical and precise indications of how this could be achieved or undermined in a particular situation. The Court considers that those instructions served not only to bring home to the members the vital importance of independence but also to provide a significant impediment to any inappropriate pressure being brought to bear.", "Accordingly, the Grand Chamber is of the opinion that the distribution and content of these briefing notes constituted a further safeguard of the independence of the ordinary members, a safeguard of which the Chamber was not informed when it examined the Morris case. 125. Thirdly, the Court finds most important the Government's clarification in the present case that ordinary members of a court-martial could not be reported on in relation to their judicial decision-making. As Lord Bingham pointed out in R. v. Boyd and Others, the prohibition on the members disclosing any opinion expressed or vote cast during the court-martial proceedings presented a practical obstacle to such reporting. The Court also notes that the evidence submitted by the appellants and the Ministry of Defence to the House of Lords produced no example of any reporting on the decision-making of the members of a court-martial (see paragraph 75 above).", "126. For these reasons, the Court finds that there were sufficient safeguards of the independence of the ordinary members of the applicant's court-martial. (d) The reviewing authority 127. The Government contested the finding in Morris on the role of the reviewing authority: they emphasised that such a review could only operate to the benefit of the convicted person and that that person would retain full access to the Courts-Martial Appeal Court thereafter. The applicant relied on Brumărescu, Findlay (p. 282, §§ 77 and 79) and Morris (§§ 73-77), cited above.", "He pointed out that, in any event, such reviews did not always operate in favour of the accused. 128. In the Court's opinion, the judgments in Van de Hurk v. the Netherlands (19 April 1994, Series A no. 288, p. 16, § 45, and p. 17, § 50) and Findlay (p. 282, § 77, and p. 276, § 52) make it clear that it is the power of a non-judicial authority to interfere with the findings of a court-martial for which the 1996 Act provides which is to be examined by this Court, irrespective of whether that power was in fact used or whether that power could only have been exercised in the applicant's favour. 129.", "In the post-1996 system under review in the present case, a court-martial reached a verdict and decided on sentence. Whether or not an individual applied to the reviewing authority, the latter would automatically review both the verdict and sentence. Subsequently, the individual could appeal against the verdict and sentence to the Courts-Martial Appeal Court. Consequently, the reviewing authority formed part of a process at the end of which the verdict and sentence became final. The Court therefore agrees with the Government that this can be contrasted with the position in Brumărescu, where the applicant had been deprived of the benefit of the legal certainty of a judicial decision which had already become final, irreversible and thus res judicata.", "130. The Court further considers, as did Lords Bingham and Rodger in the House of Lords, that the reviewing authority is an anomalous feature of the present court-martial system and expresses its concern about a criminal procedure which empowers a non-judicial authority to interfere with judicial findings. 131. Nevertheless, the Court notes that the final decision in court-martial proceedings will always lie with a judicial authority, namely the Courts-Martial Appeal Court. This is the case even if a reviewing authority quashes a verdict and authorises a retrial: even if the prosecuting authority were to decide to bring a fresh prosecution and even if a court-martial were to refuse to stay those further proceedings as an abuse of process, the final review of any new conviction and sentence would remain with the Courts-Martial Appeal Court.", "In Van de Hurk, cited above, the Court did not exclude that the Crown's power to deprive a court's judgment partially or completely of its effect could have been remedied by a subsequent review by a judicial body that afforded all the guarantees required by Article 6, although no such review was found to exist in that case. The appeal to the Courts-Martial Appeal Court was not considered sufficient in Findlay, since the applicant had pleaded guilty at first instance and no appeal lay against sentence only to the Courts-Martial Appeal Court. 132. The Court regards as unsubstantiated the applicant's assertion that courts-martial adjust sentences upwards in anticipation of the reviewing authority's assessment. Moreover, it does not consider persuasive his submission that the Courts-Martial Appeal Court would be unduly influenced by the decision of the reviewing authority: the essential fact is that the Courts-Martial Appeal Court is not in any way bound by the advice to, or the decision of, the reviewing authority.", "Indeed, one of the domestic cases on which the applicant relied (R. v. Ball and R . v. Rugg, cited above) resulted in the Courts-Martial Appeal Court overturning the finding on sentence of the reviewing authority. 133. Accordingly, the Court finds that the role of the reviewing authority did not, in the circumstances of the present case, breach the principle outlined in paragraph 106 above and, in particular, did not undermine the independence or impartiality of the applicant's court-martial. (e) Conclusion 134.", "In all of the above circumstances, the Court concludes that the applicant's misgivings about the independence and impartiality of his court-martial, convened under the 1996 Act, were not objectively justified and that the court-martial proceedings cannot consequently be said to have been unfair. There has therefore been no violation of Article 6 § 1 of the Convention. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the application admissible; 2. Holds that there has been no violation of Article 6 § 1 of the Convention.", "Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 December 2003. Luzius WildhaberPresidentPaul MahoneyRegistrar In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Costa is annexed to this judgment. L.W. P.J.M. CONCURRING OPINION OF JUDGE COSTA (Translation) Not without hesitation, I have fallen in with the majority opinion of my colleagues, which has thus in the end become unanimous.", "I wish to give the following brief explanation of my reasoning. In Morris v. the United Kingdom (no. 38784/97, ECHR 2002-I), which also concerned the procedure before a court-martial, albeit in the army, not, as here, in the air force, a Chamber of the Court, of which I was a member, unanimously found a violation of Article 6 § 1 of the Convention as regards the applicant's complaints relating to the general structure of the system. In the present case, on the contrary, the Court has held that there was no violation of Article 6. The reasoning in Morris was based on the following considerations.", "(a) There were not sufficient safeguards against the risk of outside pressures on the two members who, with the permanent president, made up the court-martial. The two officers concerned – both captains – had not received any legal training, remained subject to military discipline and assessment reports and were not insulated from army influence by any legal provision. (b) The “reviewing authority”, a non-judicial body, automatically reviewed conviction and sentence and was empowered to quash them. Above all, it could reach any finding of guilt which could have been reached by the court-martial and substitute any sentence which would have been open to the court-martial, provided it was not more serious, although the assessment of what would constitute a more serious sentence was left to the discretion of the reviewing authority itself. In reaching the opposite conclusion in Cooper, the Grand Chamber took other factors into consideration.", "(a) As regards the two “ordinary” members of the court-martial – a flight lieutenant and a squadron leader – the Grand Chamber took the view that their lack of legal training was made up for by the directions given by the judge advocate (one of the most significant safeguards) and by the briefing notes drawn up by the RAF's Courts-Martial Administration Unit (an argument raised by the Government in the present case), which the Court considered to be an additional safeguard of which the Chamber was not aware when its judgment in Morris was delivered. The Grand Chamber also took into account another piece of additional information now supplied by the Government, namely that the members of a court-martial cannot be reported on in relation to their judicial decision-making. (b) As regards the role of the reviewing authority, while taking the view that it constituted an anomalous feature of the present system, and expressing its concern about the possibility of a court's findings being varied by a non-judicial body, the Grand Chamber emphasised the role of the Courts-Martial Appeal Court, which was responsible for the final review of any new verdict or sentence and which was indeed a judicial body that afforded all the guarantees required by Article 6. The above summary shows that there are certainly differences between Morris and Cooper. Some of these are to be found in the particular circumstances of each case; the others are explained by the fact that the respondent Government's submissions were more fully developed and more precise in the second case.", "Are these differences sufficient to justify reaching two opposite conclusions, separated by an interval of less than two years? Ultimately, I think that they are. I still think that the intervention of the reviewing authority is anomalous, unfortunate and archaic, and that it would be desirable to put an end to the practice. But I would point out – and for me this is an important aspect in Cooper – that the reviewing authority's intervention did not in any way alter the verdict and sentence pronounced by the court-martial which tried Mr Cooper (see paragraph 13 of the judgment); ruling in this particular case, it would have been difficult for the Grand Chamber to uphold a complaint about a matter which had no bearing whatsoever on the outcome for the applicant. As regards the other complaint, the one concerning the “ordinary members” of the court-martial, without sharing completely my colleagues' conviction on this point (see paragraph 124), I accept that the briefing notes drawn up for the information of these officers were indeed capable of strengthening that independence to some extent.", "In the final analysis, the whole system is rather complex, as shown a fortiori by a comparison with Grieves, concerning naval courts-martial. But the essential role of our Court in relation to fair trial is not to push member States towards simplification but to ensure that they comply with the guarantees of Article 6 § 1. As the file submitted to the Court in Morris stood, I considered that the respondent State had not done so, but on the basis of the file placed before the Court in Cooper, I can now find that it did." ]

[ "FOURTH SECTION CASE OF JANKOVSKIS v. LITHUANIA (Application no. 21575/08) JUDGMENT STRASBOURG 17 January 2017 FINAL 17/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jankovskis v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: András Sajó, President,Vincent A. De Gaetano,Paulo Pinto de Albuquerque,Egidijus Kūris,Iulia Motoc,Gabriele Kucsko-Stadlmayer,Marko Bošnjak, judges,and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 13 December 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.", "The case originated in an application (no. 21575/08) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Henrikas Jankovskis (“the applicant”), on 7 January 2008. 2. The applicant, who had been granted legal aid, was represented by Ms L. Meškauskaitė, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their former Agent, Ms E. Baltutytė.", "3. The applicant alleged a violation of his right to receive information, because he was refused Internet access in prison. He relied on Article 10 of the Convention. 4. On 21 September 2010 the application was communicated to the Government.", "THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961. According to the latest information in the Court’s possession, he was serving a sentence in the Pravieniškės Correctional Home. A. Internet access 6.", "On 30 May 2006 the applicant wrote to the Ministry of Education and Science (Švietimo ir mokslo ministerija, hereinafter “the Ministry”), requesting information about the possibility of enrolling at university. He mentioned having graduated in 1996 from the Medical Faculty of Vilnius University. The applicant stated that he wished to pursue studies via distance learning to acquire a second university degree (studijuoti neakivaizdiniu būdu aukštojoje mokykloje), this time in “law with a specialisation in human rights” (teisės studijos su žmogaus teisių pakraipa). The applicant mentioned that he was a prisoner and thus could not physically attend the place of study. 7.", "In a letter of 12 June 2006 sent to the applicant at the Pravieniškės Correctional Home, the Ministry of Education and Science wrote that information about the study programmes could be found on the website <www.aikos.smm.lt>. This website states that it belongs to the Ministry of Education and Science, and is administered by a public entity, the Centre for Information Technologies in Education (Švietimo informacinių technologijų centras), which is a public institution founded by the Ministry of Education and Science. The website contains information about learning and study possibilities in Lithuania. The website states the following about the aims of the “AIKOS” system: “AIKOS is an open system for providing information, consultation and guidance, the main aim of which is to provide information about opportunities for learning in Lithuania. AIKOS provides the possibility of searching information about professions, qualifications, studies and study programmes, educational and science institutions and rules of admission... AIKOS allows users to submit a question to a consultant and to receive a reply ...", "The information provided in the central part of the AIKOS website under the sections ‘I wish to learn’, ‘I wish to study’, ‘I wish to improve my qualifications’ reflects only the current and most pertinent information relevant to the current academic year and is aimed at those who wish to enter university, vocational school, or a secondary school, or who wish to improve their qualifications. The site also contains historical data regarding education ... AIKOS provides information to three groups of users: adults, children (up to fourteen years of age) and English speakers. The users may use more functions after they have registered on this site. The AIKOS website is refreshed daily, to reflect information about education and science institutions, study and learning programmes and the qualifications a person receives upon graduating from those programmes, ... programmes for improving qualifications... It also provides information from the Lithuanian Labour Exchange about job vacancies and unemployment.", "The latter information on the AIKOS website is renewed monthly...” 8. On 28 June 2006 the applicant wrote to the Pravieniškės Correctional Home authorities, noting the reply by the Ministry and asking to be granted Internet access to a website “where there was information from the Ministry about studies, as well as to [the applicant’s] email accounts hosted on the Internet sites <www.one.lt> and <www.yahoo.com>”. 9. On 1 July 2006 the Pravieniškės Correctional Home governor replied that the prison authorities did not consider the Ministry’s reply to be comprehensive. In particular, the Ministry had not taken into account the applicant’s particular situation – namely that he was in prison.", "The prison considered that the Ministry should have provided a comprehensive reply in writing. According to the prison governor, “given that the Ministry’s reply did not satisfy [the applicant], the latter should write to the Ministry again, so that he is provided with a comprehensive reply”. 10. The prison governor also informed the applicant that the request to have Internet access could not be granted because at that time none of the legislation allowed the prisoners to use the Internet or to have a mailbox. For that reason, the Pravieniškės Correctional Home authorities were unable to grant the applicant’s request.", "11. The applicant then lodged a complaint with the Department of Prisons (Kalėjimų departamentas), arguing that none of the laws prohibited him from obtaining information from a State institution electronically. The applicant referred to the Ministry’s reply and asked to be granted Internet access. 12. On 26 July 2006 the Department of Prisons responded that the legal instruments regulating the execution of sentences did not permit prisoners to use the Internet.", "It was suggested that the applicant again ask the Ministry to provide the information he sought. 13. On 1 August 2006 the applicant started court proceedings, referring to his correspondence with the Ministry and challenging the Pravieniškės Correctional Home authorities’ decision not to grant him access to Internet. 14. In their written response to the court, the Pravieniškės Correctional Home authorities noted that, although prisoners had a right to address requests and complaints to the State authorities under Article 100 of the Code of the Execution of Sentences (see paragraph 29 below), this meant correspondence by regular post and not via electronic communication.", "Furthermore, the use of mobile phones in prisons was prohibited so that prisoners could not continue their criminal activity whilst serving a sentence. According to the Pravieniškės Correctional Home authorities, a number of fraudsters had already cheated people of large sums of money with the help of mobile phones. If the prisoners had the right to use Internet, they could pursue criminal activities and could also coordinate the activities of criminal organisations. Lastly, given that postal correspondence between prisoners was not permitted, providing prisoners with access to the Internet would make that prohibition pointless. The same was true regarding the prohibition in the 1st Annex of the Code of the Execution of Sentences of the prisoners’ possession of topographic maps (see paragraph 30 below).", "15. The Prisons Department also asked the court to dismiss the applicant’s complaint, arguing that although Article 96 of the Code of the Execution of Sentences permitted prisoners to use computers (see paragraph 29 below), this did not encompass the right to Internet use. There was no right under Lithuanian law for a prisoner to be provided with Internet access. 16. On 2 February 2007 the Kaunas Regional Administrative Court dismissed the applicant’s complaint.", "Having reviewed the legal provisions regulating prisoners’ conditions of detention, the court pointed out that the prisoners could communicate with State institutions by postal correspondence and that their letters had to be sent via the prison authorities (see paragraph 33 below). Giving Internet access to prisoners would not be compatible with those legal norms. However, as the Internet was not an object, it was not possible to list Internet among the “objects” which the prisoners were not allowed to have in prison. At the same time, from the existing ban on telephone and radio communication devices in prison it was obvious that this ban included the Internet. Such prohibition was aimed at preventing crimes being committed in prison.", "The court also observed that the requirements were set by order of the prison authorities and were therefore mandatory for the applicant, as he was under an obligation to obey prison orders. 17. The applicant appealed, disputing the lower court’s interpretation of domestic law. He also argued that the lower court had ignored the fact that the core of his complaint was the restriction of his right to education and the right to obtain information. The applicant relied on Article 25 of the Constitution (see paragraph 28 below), and Articles 10 and 14 of the Convention.", "18. The Pravieniškės Correctional Home authorities replied, indicating that there was “a secondary school (vidurinė mokykla) in the prison where students could access all the literature necessary for their studies. The secondary school graduation exams showed good results”. Furthermore, the prisoners could pursue computer literacy studies organised by the Elektrėnai vocational school (Elektrėnų profesinio rengimo centras), and that institution had not asked for Internet access. The prison thus considered that Internet access, or the lack thereof, had no impact on the quality of studies.", "19. On 11 December 2007 the Supreme Administrative Court dismissed the applicant’s complaint. The court noted that, for its users, the Internet provided very wide opportunities to use email, to obtain information, to download files, and to sell or buy things. The Internet could be used for more than merely educational purposes. However, the right to use the Internet was not absolute and this right could be restricted to certain social groups.", "This stemmed from Article 10 of the Code of the Execution of Sentences (see paragraph 29 below). There was no legal provision in Lithuania permitting prisoners to use the Internet. Even so, the prisoners’ right to have computers could not be interpreted so widely as to encompass the right to have Internet access. The Supreme Administrative Court lastly noted that if prisoners had access to the Internet, the prison authorities would be hampered in their fight against crime by being unable to fully monitor the prisoners’ activities. 20.", "On 30 June 2006 the Elektrėnai Vocational Educational Centre (Elektrėnų profesinio mokymo centras) awarded the applicant a diploma in computer skills. 21. According to the Government, in 2007-2008 the applicant had attended English language courses and computer literacy courses organised by a secondary school in Kaunas region. B. Conditions of the applicant’s detention and seizure of his computer 22.", "In 2006 the applicant started court proceedings, arguing that in July 2006 he had been held in the Lukiškės Prison for seven days in degrading conditions. Among other things, he also argued that the Lukiškės Prison authorities had seized the personal computer which the applicant had brought with him into prison. 23. On 15 January 2007 the Vilnius Regional Administrative Court dismissed the claim by the applicant as unfounded. 24.", "In a final ruling of 12 October 2007, the Supreme Administrative Court concluded that the computer had been unlawfully seized by the Lukiškės Prison authorities. However, the court found that the conditions of the applicant’s detention had been satisfactory overall, except for a few minor details, and that the gravity of those violations was not such as would amount to inhuman or degrading treatment. C. Denial of extended visits 25. In 2006 the Pravieniškės Correctional Home authorities granted the applicant’s request for an extended visit by his parents. However, the applicant later committed a disciplinary offence, and for that reason the extended visit was denied.", "26. On 4 May 2007 the Kaunas Regional Administrative Court upheld the refusal of the extended visit as legitimate. 27. By a final ruling of 6 February 2008 the Supreme Administrative Court upheld the lower court’s decision. II.", "RELEVANT DOMESTIC LAW 28. The Constitution reads as follows: Article 25 “Everyone shall have the right to have his own convictions and freely express them. No one must be hindered from seeking, receiving, or imparting information and ideas. The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order. The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation.", "Citizens shall have the right to receive, according to the procedure established by law, any information held about them by State institutions.” 29. The Code of the Execution of Sentences (Bausmių vykdymo kodeksas), as in force in the period between 1 June 2006 and 28 February 2010, read as follows: Article 10. Legal status of prisoners “1. Lithuanian citizens serving a sentence shall have all the rights, freedoms and duties established by law for the Lithuanian citizens with the restrictions established by law or the court judgment...” Article 11. General rights of prisoners “1.", "In accordance with the procedure set out by law, prisoners have a right: 1) to receive, in writing, information concerning the manner and conditions for serving the punishment, as well as information concerning their rights and duties ... 2) to address the correctional institution administration or the State or municipal institutions ... with proposals, requests and complaints ...” Article 96. The right of prisoners to use televisions, computers, video and audio players, radios and playstations “1. Prisoners, other than those serving a sentence under the conditions of a disciplinary group, are allowed to use televisions, computers, video and audio players, radios, playstations and other items indicated in the Internal Rules of Correctional Facilities that were purchased using money held in their personal accounts or handed over by a spouse, partner or close relative. 2. Rules governing the use of televisions, computers, video players, radios, playstations and other items are set out in the Internal Rules of Correctional Facilities...” Article 99.", "Prisoners’ right to correspondence “1. Prisoners are allowed to send and receive letters without restriction on their number. 2. Correspondence between prisoners kept in places of detention on remand, police custody or correctional institutions, other than between spouses or close relatives, is prohibited. 3.", "The administrative authorities of the correctional institution shall deliver letters received in the name of a prisoner and shall also send off letters handed to them by a prisoner within three working days of the receipt or handing in thereof. 4. The postage cost of sending such letters shall be covered by the prisoners. 5. In order to prevent crimes being committed, or to protect the rights and freedoms of others, letters received or sent by prisoners can be censored following a reasoned decision by a prosecutor, or the director of a correctional facility or a court decision.” Article 100.", "Prisoners’ right to submit proposals, applications, petitions and complaints to the State and municipal officials, to non-governmental organisations and to international institutions “1. Prisoners have the right to submit proposals, applications, petitions and complaints to State and municipal officials, to non-governmental organisations and to international institutions. If necessary, explanatory letters from the administrative authorities of a correctional facility may be attached to a prisoner’s proposal, application, petition or complaint. 2. The proposals, applications and complaints to State and municipal officials and to international institutions ... shall not be subject to censorship and shall be sent off within one day of their receipt by the prison authorities.", "3. Replies to prisoners’ proposals, applications, petitions and complaints shall be delivered to the prisoners and must be signed for ... 5. Prisoners are prohibited from sending anonymous or collective complaints to State or municipal institutions or officers. 6. Prisoners are prohibited from submitting to State and municipal institutions proposals, applications, petitions and complaints on behalf of other prisoners, nor may they submit them by means other than through the administrative authorities of the correctional facility.", "7. The postage cost of sending such proposals, applications, petitions and complaints shall be covered by the prisoner concerned.” Article 102. Prisoners’ right to make a telephone call “1. Prisoners are allowed to make telephone calls. [The number of phone calls a prisoner may make depends of the severity of correctional institution and the disciplinary group that a prisoners belongs to].", "2. A prisoner may make a phone call [if he can cover the costs of that telephone conversation]. 3. Phone calls between prisoners kept in places of detention on remand, police custody or correctional institutions are prohibited...” Article 110. Special duties of prisoners who are serving prison sentences “1.", "Prisoners serving prison sentences must: 1) comply with the established rules for the correctional facilities; 2) comply with the demands of the correctional facility administrative authorities ...” 30. Annex no. 1 to the Code of the Execution of Sentences, as in force in the period between 1 June 2006 and 28 February 2010, read: “1. List of prohibited items and articles (daiktai ir reikmenys) which may not be kept by prisoners serving a prison sentence: (...) 6. ... telephones (their parts and accessories), means of radio communication... (...) 16.", "Topographic maps...” 31. As of 1 March 2010, the aforementioned Annex no. 1 reads: List of items and articles which are not permitted to be kept by persons serving a prison sentence: “6. ... telephones (their parts and accessories), and other means of electronic communication.” 32. Annex no.", "2 to the Code of the Execution of Sentences, as in force in the period between 1 June 2006 and 28 February 2010, read: List of tasks which persons serving a prison sentence may not carry out: “1. Tasks involving copying machines, radio and electronic communications ...” 33. The Internal Rules of Correctional Facilities (Pataisos įstaigų vidaus tvarkos taisyklės), approved by the Minister of Justice order no. 194 of 2 July 2003, at the relevant time read: “192. The prisoners must submit proposals, requests, petitions or complaints in writing.", "Proposals, requests, petitions or complaints, which need to be sent out by post, must be handed to the correctional facility’s administration in a postal envelope ... “ 34. The Law on Education (Švietimo įstatymas) in force at the time when the applicant contacted the Ministry of Education and Science read: Article 26. Provision of information about education “1. The purpose of providing information about education is to furnish a person with information to help him or her choose the right education and education provider, as well as the aspired education and profession in line with his interests, dispositions and abilities. 2.", "A school shall make public the information about programmes of formal and non‑formal education implemented at schools, choices offered, terms of admission, paid services, teachers’ qualifications, major school survey findings, and the traditions and achievements of the school community. 3. Vocational information and vocational guidance services shall include the provision of information about opportunities afforded by vocational training programmes, higher education study programmes (aukštojo mokslo studijų programas) ... employment prospects on the labour market in Lithuania, as well as consultations. This service shall be provided by schools, information centres, consultancy companies and labour exchanges (darbo biržos) in compliance with requirements laid down by the Minister of Education and Science and the Minister of Social Security and Labour.” III. RELEVANT INTERNATIONAL MATERIALS 35.", "In the Second General Report on its activities (CPT/Inf (92) 3 [EN]), published on 13 April 1992, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter, “the CPT”) noted the following in relation to conditions of imprisonment: “47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners. This holds true for all establishments, whether for sentenced prisoners or those awaiting trial. The CPT has observed that activities in many remand prisons are extremely limited.", "The organisation of regime activities in such establishments – which have a fairly rapid turnover of inmates – is not a straightforward matter. Clearly, there can be no question of individualised treatment programmes of the sort which might be aspired to in an establishment for sentenced prisoners. However, prisoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature. Of course, regimes in establishments for sentenced prisoners should be even more favourable.” 36.", "Other Council of Europe and international law documents concerning the role of Internet in connection to the right to receive and impart information are quoted in Kalda v. Estonia (no. 17429/10, §§ 23-25, 19 January 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 37. The applicant complained that he had not had Internet access in prison.", "He argued that this had prevented him from receiving education‑related information, in breach of Article 10 of the Convention. This provision reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The submissions by the parties 1. The applicant 38. The applicant contended that the restriction of inmates’ use of the Internet in prison was not prescribed by law.", "The legislation relied on by the Government, namely point 6 of Annex 1 to the Code of the Execution of Sentences (see paragraph 30 above), which explicitly prohibited prisoners from having telephones and other means of communication such as radios, could not be regarded as formulated with sufficient precision to be foreseeable and therefore as meeting the Court’s standards. The fact that none of the legal rules clearly and unambiguously stated that prisoners may not be granted access to the Internet was further supported by the fact that Article 96 of the Code of the Execution of Sentences allowed prisoners to use computers and radios (see paragraph 29 above). The Government themselves stated that the restriction on Internet use by prisoners was only implicit, and was derived systemically from the regime applicable to prisoners per se. 39. The applicant further argued that in his case restricting the use of Internet in prison had had no connection with the aim of preventing crimes or other offences.", "In fact, he had requested Internet access only to the website indicated to him by the Ministry of Education and Science, and only to obtain specific information, that is to say, information about distance learning possibilities and programmes in Lithuania. 40. Lastly, the prohibition had not been proportionate. The Ministry of Education and Science, which was a competent State authority in the field of education in Lithuania, had explicitly told the applicant that all the information of interest about the possibilities for distance learning in higher education and study programmes was accessible via the Ministry’s official website at <www.aikos.smm.lt>. The Ministry, as the official body responsible for providing information about study programmes, had indicated no alternative ways or means for the applicant to obtain that information.", "The applicant further submitted that information about study programmes and the opportunities for distant studies was of a constantly evolving nature. The educational establishments usually updated such information in the course of the year. Accurate information was therefore only available on the Internet and without Internet access the applicant had no means of obtaining the information necessary to pursue his studies. The applicant lastly pointed out that a number of States permitted limited Internet access in prisons for educational purposes, thus showing that the absolute restriction that existed in Lithuania was disproportionate. 2.", "The Government 41. The Government argued that the applicant had not properly exhausted the available domestic remedies, because he had not complained about the Ministry’s response in separate court proceedings − a fact which the prison authorities found incomprehensible. To the Government’s knowledge, neither had the applicant made enquiries directly to higher education establishments in Lithuania which provided legal studies. 42. Alternatively, the Government submitted that the complaint was manifestly ill-founded, as the denial of one particular means of receiving information could have been circumvented by using other means available to the applicant.", "43. As the third alternative, the Government submitted that the complaint was inadmissible for the applicant had not suffered a significant disadvantage, because he had followed certain courses in the Pravieniškės Correctional Home and could obtain information sought by other means (see paragraph 46 below). The applicant’s complaints had been examined by the domestic courts, which had come to reasoned decisions. The Government also considered that there was clear case-law of the Court to the effect that States’ positive obligations under Article 10 were not interpreted as requiring them to provide a particular form of access to information for prisoners. 44.", "Should the Court nevertheless find that there had been an interference with the applicant’s right to receive information, the Government considered that that interference had had a basis in law. The implicit prohibition of prisoners’ use of the Internet stemmed from the statutory prohibition of the use of telephones and radios as communication devices, and this had been properly examined by the domestic courts in 2007. Taking into account the technological developments, the Code of the Execution of Sentences had been amended in 2010 in order to explicitly include a prohibition of the use of means of electronic communication by prisoners (see paragraph 31 above). 45. The prohibition of Internet access in prison was aimed at preventing crime, given that the Internet could be used as a means of communication like other prohibited items, such as mobile phones, which prisoners sometimes use illegally from inside prison to commit new crimes − particularly telephone fraud − or to influence participants in criminal proceedings.", "46. The Government also considered that the interference had been necessary and proportionate. As noted by the Supreme Administrative Court, the wide scope of opportunities afforded by the Internet could pose a threat to the rights of other persons. This, in turn, would require “huge efforts” by the prison authorities to prevent any such potential illegal acts. The Internet was only one means of receive information, and the prisoners could effectively exercise that right by other means, such as by postal correspondence (letters) via the prison authorities.", "In the present case, the information which the applicant sought was available in various forms – the information concerning admission to educational institutions is announced in the press, special publications are printed, and such information could also have been imparted by the applicant’s relatives. Prisoners may also receive information concerning the possibility of studies in social rehabilitation units or correctional institutions. General and vocational education was organised in Lithuania in prisons so as to guarantee the inmates’ the right to education, and the applicant had made use of those possibilities whilst serving his sentence (see paragraphs 20 and 21 above). 47. The Government pointed out that, whereas in his initial request of 28 June 2006 to the prison authorities the applicant had specifically asked for access to the Ministry’s website (see paragraph 8 above), in his lawsuit of 1 August 2006 before the Kaunas Regional Administrative Court (see paragraph 13 above) the applicant had asked for general access to the Internet, instead of complaining about his inability to obtain some particular information.", "As noted by the Lithuanian courts, the applicant also sought access to his email accounts, whereas the Convention institutions had already accepted that certain limitations as regards prisoners’ correspondence did not infringe the guarantees of Articles 8 and 10 of the Convention (the Government relied on the Commission decision in X v. the United Kingdom, no. 5270/72, 8 July 1974). 48. Lastly, Government argued that most of the Council of Europe member States restricted Internet use in correctional institutions. B.", "The Court’s assessment 1. Admissibility 49. The Court notes first of all that before the domestic courts the applicant challenged the decision by the Pravieniškės Correctional Home authorities, under whose effective control he was, not to grant him Internet access. For the applicant, such access was indispensable for the purposes of obtaining education-related information (see paragraph 17 above). The Court has also recently observed that an increasing amount of services and information is available only via the Internet (see Kalda v. Estonia, no.", "17429/10, § 52, 19 January 2016). That being so, and given that the applicant’s complaint is construed as concerning the right to receive information – thus falling under Article 10 of the Convention − as opposed to a complaint about the denial of education as such, the Court rejects the Government’s objection concerning the failure to properly exhaust the domestic remedies by, firstly, not having written letters to Lithuanian educational institutions in Lithuania and by, secondly, not having pursued court proceedings against the Ministry (see paragraph 41 above). As to the first avenue, it was not even a remedy within the sense of Article 35 § 1 of the Convention. As to the second avenue, the Court notes that as a remedy for his grievance of lack of access to information the applicant chose to pursue court proceedings against the Pravieniškės Correctional Home which had effectively barred him from accessing the Ministry’s website. In this context the Court recalls that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance.", "In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Leja v. Latvia, no. 71072/01, § 46, 14 June 2011). 50. The Court also considers that the Government’s objection about the applicant not having suffered a significant disadvantage (see paragraph 43 above) is intrinsically linked to the merits of the applicant’s complaint. Accordingly, it must be joined to the merits.", "51. The Court furthermore finds that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) On the existence of an interference 52.", "The Court has consistently recognised that the public has a right to receive information of general interest. Furthermore, the Court has held that the right to receive information basically prohibits a Government from preventing a person from receiving information that others wished or were willing to impart (see Kalda, cited above, §§ 41 and 42). 53. In the present case, however, the question at issue is not the authorities’ refusal to release the requested information (compare and contrast Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 149‑156, 8 November 2016); the applicant’s request concerned information that was freely available in the public domain.", "Rather, the applicant’s complaint concerns a particular means of accessing the information in question: namely, that he, as a prisoner, wished to be granted access – specifically via the Internet – to information published on a website belonging to the Ministry of Education and Science (see paragraph 7 above). 54. In this connection, the Court reiterates that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015; Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012; and Times Newspapers Ltd v. the United Kingdom (nos.", "1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009). 55. Nevertheless, the Court notes that imprisonment inevitably entails a number of restrictions on prisoners’ communications with the outside world, including on their ability to receive information. It considers that Article 10 cannot be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners (see Kalda, cited above, § 45).", "However, in the circumstances of the present case, since access to information relating to education is granted under Lithuanian law (see paragraph 34 above), the Court is ready to accept that the restriction of access to the Internet site to which the Ministry referred the applicant in reply to his request to provide information constituted an interference with the right to receive information. (b) Whether the interference was justified 56. The above-mentioned interference contravened Article 10 of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of that Article and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn. (i) Whether the interference was prescribed by law 57.", "The parties have disputed whether the restriction of prisoners’ use of the Internet had a basis in domestic law. The Court acknowledges that in 2006, when the applicant requested Internet access in the Pravieniškės Correctional Home, no such explicit prohibition on the use of Internet in prisons existed. The ban on the use of “other means of electronic communication”, which could be understood as also encompassing means providing Internet access, was only introduced in March 2010 in Annex no. 1 of the Code of the Execution of Sentences (see paragraph 31 above). Be that as it may, the Court notes that in 2006 numerous domestic legal norms did indeed provide for an explicit ban on telephone and radio communications by prisoners, prohibited the prisoners from working with radio and electronic communication devices, and required that all correspondence by prisoners’ be conducted in writing and sent by post via the prison authorities (see paragraphs 29, 30 and 32 above).", "It is not unreasonable to hold that all those prohibitions could have been circumvented, if prisoners were allowed access to Internet. The Court therefore does not consider that the applicant was left without an indication that there was a prohibition on the use of the Internet in prison. It therefore concludes that the prohibition on the inmates’ use of the Internet in prison was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. (ii) Whether the interference pursued a legitimate aim 58. The Court also accepts the Government’s argument (see paragraph 45 above) that the interference in question served the aim of protecting the rights of others and preventing disorder and crime (see Kalda, cited above, § 47).", "This was moreover noted by the Pravieniškės Correctional Home authorities, as well as by the administrative courts of two instances (see paragraphs 14, 16 and 19 above). The Court accepts that the domestic courts must have knowledge of the situation prevailing in the country when a number of telephone fraudsters from prisons had already cheated people of large sums of money. (iii) Whether the interference was “necessary in a democratic society” 59. The Court notes that the website to which the applicant wished to have access contained information about learning and study programmes in Lithuania. The information on that site was regularly updated to reflect, for example, admission requirements for the current academic year.", "It also provided up to date information from the Lithuanian Labour Exchange about job vacancies and unemployment (see paragraph 7 above). It is not unreasonable to hold that such information was directly relevant to the applicant’s interest in obtaining education, which is in turn of relevance for his rehabilitation and subsequent reintegration into society. As underlined by the CPT, a satisfactory programme of activities, including education, is of crucial importance for the well-being of all detainees, including prisoners awaiting trial. This is all the more relevant in relation to sentenced prisoners (see paragraph 35 above), and the applicant, who was serving a sentence in the Pravieniškės Correctional Home, was one such prisoner (see paragraph 5 above). In fact, as regards the Pravieniškės Correctional Home, the CPT specifically noted after its 2008 visit that steps should be taken to ensure that all sentenced prisoners in that prison were able to engage in purposeful activities of a varied nature, such as educational programmes (see point 49 in fine of the CPT report, quoted in Mironovas and Others v. Lithuania, nos.", "40828/12, 29292/12, 69598/12, 40163/13, 66281/13, 70048/13 and 70065/13, § 65, 8 December 2015). 60. The Court also considers that accessing the AIKOS website in the manner advised by the Ministry of Education and Science – namely browsing through it in order to find information that was relevant – was more efficient than making requests for specific information, as was proposed by the Government (see paragraph 46 above). Indeed, in order to make a specific request to an educational institution one would need to be aware of the competencies of that institution and the services provided by it. Such preliminary information would be provided by the AIKOS website.", "The Court furthermore notes the applicant’s argument that the information about the study programmes was of a constantly evolving nature (see paragraph 40 above). This fact is also highlighted on the AIKOS website itself (see paragraph 7 above). 61. Turning to the Lithuanian authorities’ decisions, the Court cannot but observe that they essentially focussed on the legal ban on prisoners having Internet access as such, instead of examining the applicant’s argument that access to a particular website was necessary for his education (see paragraphs 10, 12, 14, 15, 16 and 19 above). It is true that the Pravieniškės Correctional Home authorities pointed out the presence of a secondary school in that prison, as well as the possibility of following computer courses at Elektrėnai vocational school (see paragraph 18 above).", "However, this appears to be a very remote proposition in relation to the applicant’s wish to acquire a second university degree (see paragraph 6 above). In the present case the Court also observes that the prison authorities or the Lithuanian courts did not even go so far as to argue that extended Internet access could incur additional costs for the State (see paragraphs 14, 15, 16 and 19 above). Whilst the security considerations arising from prisoners’ access to Internet, as such, and cited by the prison authorities (see paragraph 14 above) may be considered as relevant, the Court notes that the domestic courts failed to give any kind of consideration to the fact that the applicant asked for access to a website created and administered by the Ministry of Education and Science, which was a State institution. In fact, both courts were completely silent on the matter of education (see paragraphs 16 and 19 above). 62.", "Lastly, the Court is mindful of the fact that in a number of the Council of Europe’s and other international instruments the public-service value of the Internet and its importance for the enjoyment of a range of human rights has been recognised. Internet access has increasingly been understood as a right, and calls have been made to develop effective policies to achieve universal access to the Internet and to overcome the “digital divide” (see Kalda, cited above, § 52). The Court considers that these developments reflect the important role the Internet plays in people’s everyday lives, in particular since certain information is exclusively available on Internet. Indeed, as has already been established in this case, the AIKOS website provides comprehensive information about learning possibilities in Lithuania. In this connection it is also noteworthy that the Lithuanian authorities did not even consider a possibility of granting the applicant limited or controlled Internet access to this particular website administered by a State institution, which could have hardly posed a security risk.", "63. In these circumstances, the Court is not persuaded that sufficient reasons have been put forward in the present case to justify the interference with the applicant’s right to receive information. Moreover, having regard to the consequences of that interference for the applicant (see paragraphs 59‑61 above), the Government’s objection that the applicant had not suffered significant disadvantage (see paragraph 50 above) must be dismissed. 64. The Court concludes that the interference with the applicant’s right to receive information, in the specific circumstances of the present case, cannot be regarded as having been necessary in a democratic society.", "There has accordingly been a violation of Article 10 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 65. In another application form which the applicant signed on 28 August 2008, and which the Court received on 12 September 2008, the applicant further complained about the seizure of his computer and the conditions of his detention in Lukiškės Prison. Given that the Supreme Administrative Court adopted a final decision in the set of proceedings concerning these issues on 12 October 2007 (see paragraph 24 above), the Court finds that this complaint has been lodged out of time and is therefore inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.", "66. In the application form which the applicant signed on 11 November 2008, and which the Court received on 5 December 2008, the applicant complained of being denied extended visits in the Pravieniškės Correctional Home. The Court notes, however, that the domestic proceedings in connection with this complaint ended with the Supreme Administrative Court’s decision of 6 February 2008 (see paragraph 27 above). It follows that this complaint must likewise be dismissed as being lodged out of time, in accordance with Article 35 §§ 1 and 4 of the Convention. III.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 68. The applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage. 69.", "The Government disputed the claim as unfounded and excessive. 70. The Court considers that in the circumstances of this case the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant (see, mutatis mutandis, Kalda, cited above, § 58). B. Costs and expenses 71.", "The applicant claimed reimbursement of costs, without specifying the sum claimed. 72. The Government made no comment on this issue. 73. The Court notes that the applicant was granted legal aid under the Court’s legal aid scheme, under which the sum of EUR 850 has been paid to the applicant’s lawyer to cover the submission of the applicant’s observations and additional expenses.", "In the absence of any specific claims by the applicant as well as any supporting documents, the Court decides to make no award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Joins to the merits the Government’s objection that the applicant did not suffer a significant disadvantage for the purposes of Article 35 § 3 (b) of the Convention, and rejects it; 2. Declares the applicant’s complaint about right to receive information admissible and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 10 of the Convention; 4.", "Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 17 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea TamiettiAndrás SajóDeputy RegistrarPresident" ]

[ "FIRST SECTION CASE OF GASPARI v. ARMENIA (Application no. 44769/08) JUDGMENT STRASBOURG 20 September 2018 FINAL 20/12/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gaspari v. Armenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Linos-Alexandre Sicilianos, President,Kristina Pardalos,Aleš Pejchal,Krzysztof Wojtyczek,Tim Eicke,Jovan Ilievski, judges,Siranush Sahakyan, ad hoc judge,and Abel Campos, Section Registrar, Having deliberated in private on 28 August 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no.", "44769/08) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Vartgez Gaspari (“the applicant”), on 10 September 2008. 2. The applicant was represented by Mr M. Shushanyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia to the European Court of Human Rights. 3.", "The applicant alleged, in particular, that the conditions of his detention at Nubarashen Remand Prison between 6 March and 23 December 2008 had amounted to inhuman and degrading treatment and that the domestic courts had failed to provide relevant and sufficient reasons for his detention. 4. On 22 November 2011 the complaints concerning the conditions of the applicant’s detention, the alleged unlawfulness of his detention between 23 September and 3 October 2008, and the alleged failure of the domestic courts to provide relevant and sufficient reasons for his detention were communicated to the Government and the remainder of the application was declared inadmissible. 5. Mr Armen Harutyunyan, the judge elected in respect of Armenia, was unable to sit in the case (Rule 28 of the Rules of Court).", "Accordingly, the President of the Chamber decided to appoint Mrs Siranush Sahakyan to sit as an ad hoc judge (Rule 29 § 1(a)). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1957 and lives in Yerevan. 7.", "The applicant is an ethnic Armenian who was born and raised in Iran and who subsequently went to live in Armenia. A. The applicant’s arrest, detention and conviction 8. On 19 February 2008 a presidential election was held in Armenia. The subsequent protest rallies were eventually terminated on 1 March 2008 following intervention by the police, which resulted in clashes between protesters and law-enforcement officers and numerous arrests.", "9. On 1 March 2008 the applicant, who was apparently near the main rally location around the time of the police intervention, was taken to a police station on suspicion of assaulting a police officer. It appears that when asked for his identity at the police station, the applicant introduced himself as Vardges Gasparyan. 10. In the applicant’s arrest record drawn up on 2 March 2008 his name was indicated as both Vartgez Gaspari and Vardges Gasparyan.", "11. In a note dated 3 March 2008 the investigator stated that the applicant’s wife had presented his passport and that the information provided by the applicant about his identity did not correspond to the information contained in his passport. 12. On 5 March 2008 the applicant was formally charged and brought before the Arabkir and Kanaker-Zeytun District Court of Yerevan. The court examined an application lodged by the investigator for the applicant’s pre-trial detention for a period of two months on the grounds that, if he remained at large, he could abscond, obstruct the course of justice, commit another offence and evade criminal responsibility.", "13. The applicant submitted before the District Court that the application was unsubstantiated. He had a higher education, was married, was head of a company, had a minor child dependent on him and had no previous convictions. The imputed acts fell into the category of offences of medium gravity and it had not been substantiated that if he remained at large, he would evade criminal responsibility. 14.", "The District Court decided to allow the investigator’s application, taking into account the dangerousness of the imputed offence and the fact that if the applicant remained at large, he could abscond, obstruct the proceedings, commit another offence and influence witnesses. 15. On 11 March 2008 the applicant lodged an appeal, arguing that there was no evidence suggesting that if he remained at large, he would abscond, obstruct the course of justice, unlawfully influence witnesses, commit another offence or evade criminal responsibility. He was a respected and trusted person in the society, was known to be of good character, had a permanent place of residence and a minor child dependent on him, and had always respected the law. 16.", "On 20 March 2008 the Criminal Court of Appeal dismissed the applicant’s appeal. The Court of Appeal stated that it followed from the case file that after having been brought to the police station, the applicant had introduced himself as Vardges Gasparyan instead of Vartgez Gaspari, thereby providing false information about his identity. His real name was discovered only after his passport had been presented. This provided sufficient grounds to believe that if the applicant remained at large, he could abscond, falsify or conceal evidence and obstruct the investigation by failing to appear when summoned by the authority conducting the criminal proceedings. 17.", "On 23 April 2008 the Kentron and Nork-Marash District Court of Yerevan decided to set the case down for trial and to keep the applicant in detention. 18. On 14 May, 17 June, 17 July and 5 August 2008 the applicant applied to the District Court for his release. 19. The District Court dismissed the applications of 14 May and 17 June, finding that the grounds for the applicant’s detention still persisted.", "It adjourned the examination of the applications of 17 July and 5 August until circumstances necessary for a decision to be taken had been clarified. 20. At the hearing of 23 September 2008, the applicant once again urged the court to release him and asked it to reason its decision. The presiding judge refused to take a decision, stating that it had already been decided on 17 July to adjourn that question. It appears that an argument erupted between, on the one hand, the applicant and his lawyer, who insisted that the judge take a decision on the applicant’s request or otherwise withdraw from the case, and on the other hand, the judge and the prosecutor, who objected to the demand that the judge withdraw.", "The applicant then wanted to leave the courtroom in protest against the allegedly unlawful actions of the judge. The judge decided to penalise the applicant by removing him from the courtroom on the grounds that he was obstructing the normal course of the hearing, abusing his procedural rights and disrespectfully refusing to follow the judge’s orders. The hearing was adjourned until 29 September 2008. 21. At the hearing of 29 September 2008, the presiding judge refused to grant the applicant’s lawyer permission to lodge an application for release.", "Thereafter the applicant declared that he wished to lodge a challenge to the judge. In response, the judge decided once again to penalise the applicant on the same grounds as previously, by removing him from the courtroom and adjourning the hearing until 3 October 2008. 22. On 22 October 2008 the applicant lodged another application, seeking to be released on bail. It appears that no decision was taken on that application.", "23. On 10 November 2008 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty as charged and sentenced him to one year’s imprisonment. The beginning of his sentence was to be calculated from 2 March 2008. The periods from 23 to 29 September and from 29 September to 3 October 2008, during which the court hearings were adjourned because of the applicant’s removal from the courtroom, were not to be calculated as part of his sentence, pursuant to Article 314.1 § 6 of the Code of Criminal Procedure (CCP). 24.", "On 27 February 2009 the Criminal Court of Appeal, taking into account that Article 314.1 § 6 of the CCP had been amended in the meantime (see paragraph 35 below) and as a consequence the periods during which the trial court hearings had been adjourned were to be calculated as part of the applicant’s sentence, decided to release him on the grounds that he had already served his one-year sentence. B. Conditions of the applicant’s detention 25. Between 6 March and 23 December 2008 the applicant was kept at Nubarashen Remand Prison. 26.", "From 6 to 7 March 2008 the applicant was held in cell no. 9, which measured about 20 by 25 sq. m and accommodated seven to eight inmates. The cell was located in a semi-basement and was very damp and unsanitary. The air was stale, as the only source of ventilation was a window measuring one square metre and facing a pit filled with several centimetres of rubbish and frequented by rats.", "In the evening the toilet situated in the corner of the cell became clogged and sewage from the upper floors flooded the entire cell floor. The inmates’ appeals to the prison guards produced no results and they were allowed only to direct the flood towards the corridor. The applicant addressed a letter to the head of the remand prison, complaining about the unsanitary conditions in the cell and, in particular, the flooding, and requested that measures be taken. 27. At noon on 7 March the applicant was transferred to cell no.", "29, which measured about 20 by 25 sq. m and accommodated about ten inmates. While in that cell, the applicant declared a hunger strike in protest against alleged human-rights violations in Armenia. 28. At around 2 p.m. on the same date the applicant was transferred to cell no.", "4, where he was kept until 14 March 2008. He shared the cell with another hunger striker. The cell measured about 20 sq. m and was again situated in the detention facility’s semi-basement. The conditions were allegedly unsanitary, the air was damp and it stank of sewage.", "The only window to the basement cell, measuring 1 sq. m, had a pit in front of it which prevented natural light from entering the cell. No out-of-cell activities were allowed. 29. From 14 to 20 March 2008 the applicant was kept in cell no.", "79, which measured 20 sq. m. The cell was relatively calm and ventilated. 30. From 20 March to 15 April 2008 the applicant was kept in cell no. 20, which measured about 20 sq.", "m and accommodated ten to twelve inmates. Almost all of his cell-mates smoked. Being a non-smoker, he felt asphyxiated and his eyes watered continuously. The television was switched on twenty-four hours a day, which disrupted his sleep. On 15 April 2008 the toilet became clogged and the cell floor flooded with sewage from the upper floors.", "The applicant complained and was transferred to cell no. 42 on the next floor. 31. From 15 April to 4 September 2008 the applicant was kept in cell no. 42, which measured about 25 sq.", "m and accommodated up to fourteen inmates. The cell had only eight beds, so the inmates had to sleep in turns. There was a serious lack of fresh air, since almost all of his cell-mates smoked. The sanitary conditions were relatively satisfactory. 32.", "From 4 September to 23 December 2008 the applicant was kept in cell no. 10, which measured about 12 sq. m and accommodated three to four inmates. II. RELEVANT DOMESTIC LAW A.", "Criminal Code (in force as of 1 August 2003) 33. Article 69 § 3 provides that one day’s detention preceding the date on which a conviction becomes final is equal to one day’s imprisonment imposed as a sentence. B. Code of Criminal Procedure (in force as of 12 January 1999) 34. Article 314.1 § 1 (2) prescribed, at the material time, removal from the courtroom as a penalty that the court may impose on the parties, other participants in the proceedings and persons attending the court hearing if they showed disrespect towards the court, obstructed the normal course of the hearing, abused their procedural rights or unjustifiably failed to comply or properly comply with their procedural obligations.", "Article 314.1 § 6 provided that, if the accused was removed from the courtroom as a penalty, the hearing was to be adjourned for two weeks. The adjournment period could not be calculated as part of the sentence period. 35. On 5 February 2009 an amendment was introduced to Article 314.1 § 6, with retroactive effect, repealing the part concerning the non-calculation of the adjournment period as part of the sentence. C. Law on Detention Conditions for Arrested and Detained Persons (Ձերբակալված և կալանավորված անձանց պահելու մասին օրենք) (in force as of 1 April 2002) 36.", "Section 13(3) provides that an arrested or detained person is entitled to lodge, himself or through his lawyer or statutory representative, applications and complaints alleging a violation of his rights and freedoms. The application may be lodged with the administration of the facility where the arrested or detained person is held, the relevant higher authority, a court, a prosecutor’s office, the Ombudsman, bodies of public administration and local self-governance, non-governmental unions and political parties, mass-media and international institutions, and organisations protecting human rights and freedoms. 37. Section 20 provides that the living space afforded to arrested and detained persons must comply with the building and sanitary and hygienic norms established for general living spaces. The living space afforded must not be less than 4 sq.", "m for each individual. III. RELEVANT COUNCIL OF EUROPE DOCUMENTS A. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT): Report to the Armenian Government on the visit to Armenia carried out by the CPT from 15 to 17 March 2008, CPT/Inf(2010)7 38. The CPT paid an ad hoc visit to Armenia from 15 to 17 March 2008. The main purpose of the visit was “to examine the treatment of persons detained in relation to events which followed the presidential election of 19 February 2008, after having received numerous reports from various sources alleging excessive use of force by law enforcement officials and expressing concern about the fate of those taken into detention”.", "During the visit the CPT visited, among others, Nubarashen Remand Prison where a number of the above-mentioned persons were interviewed in connection with the circumstances of their arrests, including any alleged ill-treatment. As regards the conditions of detention at that facility, the CPT’s report stated: “Given the nature of the visit, the CPT’s delegation did not examine in detail the conditions of detention in the three prisons visited. However, it should be noted that a number of prisoners interviewed at Nubarashen Prison complained that they had not been provided with outdoor exercise (for periods of up to 10 days)”. B. Report by the Council of Europe Commissioner for Human Rights on His Special Mission to Armenia on 12-15 March 2008, CommDH(2008)11REV, 20 March 2008 39.", "The Council of Europe Commissioner for Human Rights paid a special visit to Armenia from 12 to 15 March 2008. The purpose was to “monitor the overall human rights situation and the impact of the state of emergency declared after the post-election clashes”. It appears that during his visit the Commissioner interviewed a number of persons detained at Nubarashen Remand Prison in connection with those events. The Commissioner’s report produced following his visit contains no mention of the conditions of detention at that facility. C. CPT: Report to the Armenian Government on the visit to Armenia carried out by the CPT from 10 to 21 May 2010, CPT/Inf(2011)24 40.", "The relevant parts of this report read as follows: “61. ... Prison overcrowding was a common feature of all the penitentiary establishments visited, Nubarashen Prison being the most striking example. The delegation witnessed the negative impact of overcrowding on many aspects of life in prison: the inmates taking turns to sleep on available beds; cramped and unhygienic accommodation; the virtual absence of structural activites and restrictions on the provision of outdoor exercise ... 81. As regards material conditions, most of the cells were seriously overcrowded, with a significant proportion of inmates taking turns to sleep on the available beds on on the floor (e.g. 19 prisoners in a cell of 26 m² containing 12 beds).", "The majority of cells (and in-cell toilets) were in a state of dilapidation ... Ventilation was poor, and running water was available for a maximum of four hours a day (two hours in the morning and two hours in the evening) ... Further, the shower facilities were generally in a poor state of repair, and prisoners had access to them at best once a week, frequently only once every two weeks. 82. The provision of outdoor exercise at Nubarashen Prison has been an ongoing problem since the CPT’s first visit in 2002. Outdoor exercise was still not organised at week-ends, mainly due to staff shortages, and most prisoners interviewed indicated that, in practice, they were allowed outdoor exercise once to three times a week.", "Apart from a few prisoners working in general services (e.g. cleaning, maintenance work, kitchen), the vast majority of inmates were locked up for 23 or even 24 hours a day in their cells, with no other activities than watching TV, playing board games or reading books.” D. CPT: Report to the Armenian Government on the visit to Armenia carried out by the CPT from 5 to 15 October 2015, CPT/Inf(2016)3 41. The relevant parts of this report read as follows: “63. Material conditions at Nubarashen Prison had remained basically the same as those observed during the 2010 periodic visit i.e. they were unacceptable.", "Despite some local efforts to redecorate (mostly by inmates themselves and often using their own resources or the resources of their families), the prison was in a state of advanced dilapidation. Further, it was severely overcrowded (even taking into account the drop in population since 2010), with some inmates not having their own bed and sleeping in shifts. In a number of the standard 12-bed cells seen by the delegation there could be up to 17 prisoners, and it was not exceptional to see 14 inmates, especially in the units for remand prisoners (e.g. in cells Nos. 16, 34 and 51).", "Many cells (especially on the ground level) were humid, damp, affected by mould, poorly lit and ventilated, dirty and infested with vermin. There were still serious problems with water supply (water continued to be available at most 4 hours per day). The communal bathrooms/showers were dilapidated and access to a shower offered at most once per week. Most cells had only semi-partitioned sanitary annexes. The kitchen and laundry were dilapidated too.", "Further, outdoor exercise was still not available on weekends and – when offered – it reportedly did not always last one hour. The bulk of the inmates had to use the same small and inadequate yards located on the roof of the establishment. ... 65. More generally, the Committee is of the view that the structure and the present condition of Nubarashen Prison are so inadequate that they warrant a serious reflection as to the future of the establishment and the advisability of any further investment (rather than directing the available resources to ensure appropriate conditions of detention at some other location). In any case, were a decision to be taken to continue operating Nubarashen Prison on its current premises, a massive and comprehensive refurbishment would be indispensable, covering issues such as access to natural light, artificial lighting, ventilation, full partition of sanitary annexes, water supply, state of communal bathrooms/showers, repainting, disinfestation, hygiene in the cells and the kitchen.” THE LAW I.", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 42. The applicant complained that the conditions of his detention had been in breach of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 43. The Government submitted that the applicant had failed to exhaust domestic remedies, since he had never complained to a court under section 13(3) of the Law on Detention Conditions for Arrested and Detained Persons which provided persons deprived of their liberty with a possibility to lodge court complaints concerning violations of their rights. 44. The applicant did not comment on the Government’s objection.", "45. The Court reiterates that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement (see Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006; and Vučković and Others v. Serbia (preliminary objection) [GC], nos.", "17153/11 and 29 others, § 77, 25 March 2014). 46. The Court notes that it has examined on a previous occasion the objection that an applicant had failed to exhaust the domestic remedy provided for under section 13(3) of the Law on Detention Conditions for Arrested and Detained Persons and decided that this remedy was not effective (see Kirakosyan v. Armenia, no. 31237/03, §§ 57-58, 2 December 2008). Although there are undeniable differences between that case and the instant one, the Court further notes that the Government have failed to produce any new evidence substantiating the effectiveness of the remedy they invoke.", "For this reason it rejects the Government’s non-exhaustion objection. 47. 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 48. The applicant submitted that the conditions of his detention at Nubarashen Remand Prison between 6 March and 23 December 2008 had amounted to inhuman and degrading treatment in breach of Article 3. 49.", "The Government submitted that the conditions of the applicant’s detention had been in compliance with CPT standards. Referring to the reports produced by the CPT and the Council of Europe Commissioner for Human Rights following their March 2008 visits to Armenia, including to Nubarashen Remand Prison, they argued that, since those reports did not contain any negative findings about the conditions in that facility, the conditions had been in compliance with international standards. Furthermore, section 20 of the Law on Detention Conditions for Arrested and Detained Persons guaranteed sufficient living space for inmates. 2. The Court’s assessment (a) General principles 50.", "In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured (see, among other authorities, Muršić v. Croatia [GC], no. 7334/13, § 99, ECHR 2016). 51. The Court has held that, when the personal space available to a detainee falls below 3 sq.", "m of floor surface in multi-occupancy accommodation in prisons, 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, who could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met: (1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor; (2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; and (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (ibid., §§ 137-38). 52.", "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 element remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if 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, possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (ibid., § 139). 53. The Court has also stressed that in cases where a detainee disposed of more than 4 sq.", "m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention remain relevant for the Court’s assessment of adequacy of an applicant’s conditions of detention under Article 3 of the Convention (ibid., § 140). (b) Application of the above principles in the present case 54. In the present case, the applicant alleged that the conditions of his detention at Nubarashen Remand Prison between 6 March and 23 December 2008 had fallen short of the requirements of Article 3. The Court notes at the outset that although the Government contested the applicant’s allegations concerning the conditions of his detention at that facility, they failed to submit any evidence in support of their submissions or provide any details regarding the particular conditions of the applicant’s detention. As regards the two reports referred to by the Government, the Court notes that neither of them examined specifically the conditions of detention at Nubarashen Remand Prison.", "The only comment in that respect found in the CPT’s report suggested that some detainees may have experienced a lack of outdoor activities (see paragraphs 38 and 39 above). At the same time, the Court cannot overlook the CPT’s findings concerning the overall conditions of detention at Nubarashen Remand Prison following its periodic visit in 2015, which were found to have remained the same since the CPT’s periodic visit in 2010 and raised numerous problems (see paragraph 41 above). The Court is mindful of the fact that both periodic visits took place after the circumstances of the present case. However, there is nothing to suggest that the conditions of detention at that facility were significantly different during the period when the applicant was detained there, namely in 2008. In such circumstances, the Court has no reason to doubt the applicant’s allegations and will proceed with its examination on the basis of them.", "55. The Court notes that during his stay at Nubarashen Remand Prison the applicant was detained in seven different cells, in which the conditions of detention varied (see paragraphs 26-32 above). The Court considers it necessary to examine first the periods during which the applicant had less than 3 sq. m of personal space, followed by the periods during which the personal space available to him was between 3 and 4 sq. m, and lastly all the remaining periods.", "As the Court has not received any information from the Government in that connection, and since the applicant’s submissions in that respect are not sufficiently precise, the information available to the Court regarding the size of the cells and the number of inmates is only approximate. Nevertheless, the information which the Court has at hand allows it to reach the following conclusions. (i) The periods during which the applicant had less than 3 sq. m of personal space 56. There were two periods during which the applicant clearly had personal space of less than 3 sq.", "m: on 7 March 2008, in cell no. 29 (about two hours – about 2 to 2.5 sq. m), and between 20 March and 15 April 2008, in cell no. 20 (twenty-six days – about 1.6 to 2 sq. m) (see paragraphs 27 and 30 above).", "57. As regards the former period, the Court observes that it was quite short, lasting only about two hours. The Court notes, however, that the applicant was transferred to cell no. 29 from cell no. 9, which had been overcrowded and in an unsanitary condition (see paragraph 60 below).", "After cell no. 29 he had been placed in cell no. 4, where the conditions also fell short of the requirements of Article 3 (see paragraph 64 below). The Court further notes that the Government have failed to demonstrate that there were factors capable of rebutting the strong presumption of a violation of Article 3. Therefore, despite the overall brevity of the applicant’s stay in cell no.", "29, the Court considers that his detention therein should be considered as part of a longer, continuous situation and for this reason had amounted to degrading treatment within the meaning of Article 3. 58. As regards the latter period, taking into account its duration and the amount of personal space at the applicant’s disposal, it is sufficient for the Court to conclude that that period does not call into question the strong presumption of a violation of Article 3. Therefore, the conditions of the applicant’s detention in cell no. 20 subjected him to hardship going beyond the unavoidable level of suffering inherent in detention and thus amounting to degrading treatment prohibited by Article 3 of the Convention (see, mutatis mutandis, Muršić, cited above, §§ 151-153).", "(ii) The periods during which the applicant may have or appears to have had less than 3 sq. m of personal space 59. The Court refers here to the periods spent by the applicant in cells nos. 9 (from 6 to 7 March 2008) and 42 (from 15 April to 4 September 2008) (see paragraphs 26 and 31 above). 60.", "As regards the former period, the applicant’s submissions do not allow the Court to ascertain whether he had more or less than 3 sq. m of personal space during his stay in cell no. 9. In any event, it is evident that the personal space available to him must have been at worst 2.5 sq. m and at best 3.57 sq.", "m. Even assuming that it was the latter, it would still have been below 4 sq. m and therefore amounts to a weighty factor in the Court’s assessment. It is true that the applicant’s stay in cell no. 9 was rather short and amounted to only one day. However, having regard to other aspects of the physical conditions of detention in the cell, including the alleged lack of natural light and fresh air, and the unsanitary situation in the cell, the Court is of the opinion that cumulatively the conditions in cell no.", "9 reached the threshold required for a finding of a violation of Article 3. 61. As regards the latter period, the Court notes that it lasted in total 143 days, during which, as it appears, there were periods when the applicant had as little as 1.78 sq. m of personal space at his disposal, that is when fourteen inmates were accommodated in the cell. It is true that the applicant failed to specify the frequency and duration of such periods.", "However, the Court takes note of the applicant’s allegation about the lack of an individual sleeping place during that period, which – in addition to being a problem in itself – also suggests that, given the number of beds, there were at least nine inmates in the cell at any given time, leaving the applicant with no more than about 2.77 sq. m of personal space. These factors, as well as the alleged constant exposure to smoke, are sufficient for the Court to conclude that the conditions of the applicant’s detention in cell no. 42 amounted to degrading treatment within the meaning of Article 3. (iii) The period during which the applicant had between 3 and 4 sq.", "m of personal space 62. Between 4 September and 23 December 2008 the applicant was kept in cell no. 10, where he had between 3 and 4 sq. m of personal space (see paragraph 32 above). The applicant did not, however, make any other allegations regarding the conditions of his detention in that cell.", "While the space element remains a weighty factor in the Court’s assessment, it is not sufficient on its own for the Court to conclude that the conditions of the applicant’s detention in cell no. 10 amounted to degrading treatment within the meaning of Article 3. (iv) The remaining periods 63. The Court refers to the last two remaining periods of detention, namely between 7 and 14 March 2008 in cell no. 4 and between 14 and 20 March 2008 in cell no.", "79 (see paragraphs 28 and 29 above). 64. As regards the former period, the Court notes that cell no. 4 was a multi-occupancy cell and the applicant had 10 sq. m of personal space at his disposal during that period.", "Thus, no issue with regard to the question of personal space arises in connection with the applicant’s stay in that cell. Nevertheless, the Court must have regard to other aspects of the physical conditions of his detention in the cell in question. It notes that during that entire period, which lasted seven days, the applicant was not allowed any out-of-cell activities and was confined to his cell. Although he was not specific about the alleged unsanitary state of the cell, the absence of any out-of-cell activities, coupled with the alleged odour of sewage and shortage of natural light, prompt the Court to conclude that the conditions of his detention in that cell amounted to degrading treatment within the meaning of Article 3. 65.", "As regards the latter period, the Court notes that the applicant failed to provide any information regarding the number of inmates kept in cell no. 79. Nor did he allege that the cell had been overcrowded. On the contrary, he submitted that the cell had been “relatively calm and ventilated”. Thus, there are no grounds to conclude that the conditions of his detention in that cell were in violation of the requirements of Article 3.", "(v) Conclusion 66. The Court finds that there has been a violation of Article 3 of the Convention with regard to the conditions of the applicant’s detention in cells nos. 29, 20, 9, 42 and 4. 67. Conversely, with regard to the conditions of the applicant’s detention in cells nos.", "10 and 79, the Court finds that there has been no violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 68. The applicant complained that the fact that the period which he had spent in detention during the adjournment of the trial court hearings, namely between 23 September and 3 October 2008, had not been calculated as part of his sentence violated the guarantees of Article 5 § 1 of the Convention. 69.", "The Government submitted that the applicant could not claim to be a victim of an alleged violation of Article 5 § 1. Firstly, the District Court’s decision not to calculate the detention period during which the hearings were adjourned as part of his sentence was taken in accordance with the domestic law at the material time, namely Article 314.1 § 6 of the CCP. Secondly, on 5 February 2009 Article 314.1 § 6 of the CCP had been amended with retroactive effect, as a result of which the Criminal Court of Appeal reversed the District Court’s decision and calculated the period in question as part of the applicant’s sentence. 70. The applicant did not comment on the Government’s objection but submitted that the penalties imposed on him by the District Court had failed to satisfy the principle of lawfulness within the meaning of Article 5 § 1.", "In particular, although the penalties had been imposed for purposes provided for by law, they had been repressive measures aimed at hindering the exercise of his rights. 71. The Court points out that in order to be able to lodge an application in pursuance of Article 34 of the Convention, a person must be able to claim to be a “victim” of a violation of the rights enshrined in the Convention: to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008). In the present case, the requirements of Article 314.1 § 6 of the CCP were eventually not applied in the applicant’s case because the relevant part of that provision had been repealed while the applicant was still serving his sentence.", "As a result, the time the applicant spent in detention did not exceed his original prison sentence. In such circumstances, the Court agrees with the Government that the applicant cannot claim to be a victim of an alleged violation of Article 5 § 1 of the Convention. 72. It follows that this part of the application is incompatible ratione personae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 73. The applicant complained that the domestic courts had failed to provide relevant and sufficient reasons for his detention as required by Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 74. 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 75. The applicant submitted that the courts had failed to provide relevant and sufficient reasons for his detention. They had not relied on any evidence when finding the risks of improper conduct on his part to be justified, and their findings amounted to mere citations of the relevant provisions of domestic law.", "As regards the finding made by the Criminal Court of Appeal in its decision of 20 March 2008 about his intention to conceal his identity, the applicant submitted that he was an ethnic Armenian born and raised in Iran; his original Armenian name, Vardges Gasparyan, had been “iranianised” into Vartgez Gaspari. Since moving to Armenia, he had always introduced himself as Vardges Gasparyan and even his residence permit until 2006 had carried that version of his name. Both versions of his name had therefore been provided and indicated in the record of his arrest. Thus, in order to justify his detention the Court of Appeal had deliberately distorted the facts by stating that his identity had been discovered only after the presentation of his passport. The investigator’s note of 3 March 2008 had been false and had pursued the same aim.", "76. The Government argued that the District Court had provided relevant and sufficient reasons for the applicant’s detention, such as the risk of absconding and obstructing the investigation. The District Court had based its decision on a large number of materials of the case submitted by the investigator in support of his application seeking the applicant’s detention. Furthermore, the applicant had provided false information about his identity, which the investigator and the courts had rightly interpreted as substantiating his intention to abscond and obstruct the investigation. 77.", "The Court refers to its general principles under Article 5 § 3 of the Convention relating to the right to be released pending trial (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 92-102, ECHR 2016 (extracts), and Ara Harutyunyan v. Armenia, no. 629/11, §§ 48-53, 20 October 2016) and notes that it has already found the use of stereotyped formulae when imposing and extending detention to be a recurring problem in Armenia (see Piruzyan v. Armenia, no. 33376/07, §§ 97‑100, 26 June 2012; Malkhasyan v. Armenia, no. 6729/07, §§ 74-77, 26 June 2012; Sefilyan v. Armenia, no.", "22491/08, §§ 88-93, 2 October 2012; and, most recently, Ara Harutyunyan, cited above, §§54-59). In the present case, all the decisions of the trial courts followed the same pattern: they either contained no reasoning whatsoever or amounted to a mere citation of the relevant domestic legal principles with a reference to the gravity of the offence, without addressing the specific facts of the applicant’s case or providing any details as to why the risks of absconding, obstructing the course of justice or reoffending were justified (see paragraphs 14, 17 and 19 above). 78. As regards the reasoning provided by the Criminal Court of Appeal in its decision of 20 March 2008, the Court accepts that when a suspect deliberately provides misleading information about his identity, this may be a relevant factor to be taken into account when deciding on the risk of improper conduct on his part. It does not consider, however, that in the present case the decision in question was sufficiently reasoned.", "In particular, firstly, it is not clear on what grounds the Court of Appeal concluded that the applicant had deliberately misled the investigating authority about his identity and that his real identity had been discovered only on 3 March 2008, when the record of the applicant’s arrest drawn up on 2 March 2008 contained both his official name and the name by which, as the applicant alleged, he always introduced himself. No explanation was provided as to this fact, including the discrepancy between the information contained in the record of the applicant’s arrest and the note drawn up by the investigator on 3 March 2008. Furthermore, the Court notes that neither the investigator nor the trial court relied on that fact when substantiating the need to keep the applicant in detention (see paragraphs 12 and 14 above). The Court of Appeal took its decision on the basis of the appeal lodged by the applicant, who argued that the trial court had provided no reasons for his detention (see paragraph 15 above). The Court of Appeal failed to address any of the arguments raised by the applicant and instead reasoned the need to keep him in detention by stating that he had provided false information about his identity.", "There is nothing to suggest that that ground for detention was the subject of examination before the Court of Appeal and it appears that the court reached the relevant finding on the basis of the case file. By doing so, the Court of Appeal denied the applicant the possibility of objecting to that ground for detention, including by submitting the arguments which he raised before this Court. Thus, having regard to the overall circumstances of the applicant’s case and the reasons provided, the Court considers that the domestic courts failed to provide relevant and sufficient reasons for their decisions to impose and extend the applicant’s detention. 79. There has accordingly been a violation of Article 5 § 3 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 81. The applicant claimed 100,000 United States dollars in respect of pecuniary damage, alleging that this constituted the loss incurred by the private company he had been running prior to his deprivation of liberty.", "He further claimed 60,258 euros (EUR) in respect of non-pecuniary damage. 82. The Government submitted that there was no causal link between the damages claimed and the violations alleged. Nor had the applicant produced any evidence in support of his claims for pecuniary and non-pecuniary damages. Lastly, the amount claimed in respect of non-pecuniary damage was exorbitant.", "83. The Court notes that the applicant indeed did not support his claim for pecuniary damage with any documentary evidence. This claim must therefore be dismissed. On the other hand, the Court considers that he undoubtedly suffered non-pecuniary damage as a result of the violations found. It therefore awards him EUR 4,000 in respect of non-pecuniary damage.", "B. Costs and expenses 84. The applicant did not claim any costs and expenses. C. Default interest 85. 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.", "FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the complaints concerning the conditions of the applicant’s detention and the alleged failure of the courts to provide relevant and sufficient reasons for his detention admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 3 of the Convention with regard to the conditions of the applicant’s detention in cells nos. 4, 9, 20, 29 and 42; 3. Holds that there has been no violation of Article 3 of the Convention with regard to the conditions of the applicant’s detention in cells nos.", "10 and 79; 4. Holds that there has been a violation of Article 5 § 3 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.", "Abel CamposLinos-Alexandre SicilianosRegistrarPresident" ]